Law, Liberty, and Morality

I 'he Legal Enforcement of Morality, I onspiracy to Corrupt Public Morals, 6 Prostitution alid Homosexuality, 13 ositive and Critical Morality, 17

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. ..)use of Examples, 25

Ihe Use ar alism and r nforcemcnt of Morality, 3 The Moral Gradation of Punishment, 34 Private Immorality and Public Indecency, 38 The Moderate and the Extreme Thr~is. AR

Populism and Democrac

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of this book to make somt thc point and 1 of the book wherc I thlok &IS &ay have been m~sunderstoc some of my critics, and to reply to m u major criticism ur bv Lord Dcvlm. I also add a list of the more unoortant illuminating publications concerned with drc main argument the book.

I The threc lceturcs w h i i fmm tkis bDdr wcrc given at Sta University in 1962,and like mny two mr2Lr article?+ lmmornI11~ urrt Treason (Lrrrmrr, I.& and TAr Use and A b u e of the Crrmzna Law (Oxfard Lnwyn, 1+t) they were intarded as a contributio~ to the public discusion in E q l a n d of &e proper scope of th criminal law whicb had bccn stimulrtcd by tbc publication in 1959 of the rcpoa of the CoaLmitrce on Hbmnsaual Offences and Prostitution (Thc Woifcndm Thir qmrt had recommended the removal of &mind xnmnioua from homosexual practices between consenting ndulte in piivate on the ground that wen if such practices arc d d d y hdd to be immornl something more than this must be &awn to justify tk w B( the criminal law: the control of conduct merely becaurc kt was immoral according to accepted standadr of a sockty was nof tbe law's business. The argument ueed by the Wolfcnden Commitae was attadred by Lord Dcvlin, then a Lord nf Appeal in Ordinary and widely regarded as a lawya of great distinctinn, in his Maccabcan lecture t British Acadcmy in 1959, on the E n ~ c c m c o tof Morals, sequendy included w11h o t h a casays in his book of that published in 1965. His central argument was that a society's morality was as nweaary to its existence as a raognized governmen

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and thc justification f a its cnforeemcnt by law war simply &at the law might be used 16 preserve anything cswntial to society's aiti t e a . hDevlii &d an anal& k c e n immorality-in the x n x of the infringement of a society's shared moral codc-and ucasw, and argued that the suppression of such immorality was E much the law's business, and justifiable on the same grounds, ~e suppression of subversive activities. It is important for the understanding of &is book to ?,:$*~ ., lat its argurncnrs are mainly of a nebtiye character designed m :,.leet the s p i f i c u s e presented by b y d Dcvlin to justify .the up ,:,.:; $i f the criminal law to wanish deviations from a society's s h a d .',. morality. I endcawural to make this plrin by drawing a distinction between the "positive" rtrmally shnrcd morality of a society and a "critical" morality and I empherivd &at tbe c r u d issue between Lord Devlin and myself was the sigaificDKe to be attached to the bare fact that conduct, no mam what, was ptoh~bitedby a society's positive morality. Some of my c r h have taken me to task for * ~ k i u go v a from LMd h I ' i & faulty and misleading detinition f morality. Tbcy would deny that the facr &at standards of conduct re widcly shared in a partidar society and mnngly supported y feellngs of "intotrance inblgnath and d i s p t " ( w h i i are the narks for Lord Devlm of thc morabty which the law may enforce) lough to warrant the deaription of [hoar mndards as "moral~ty". criticr also complain that I have Eiilad in thh to enquire (hat case there could be, on some mwc ntistxtory definition of norality, for cnfarcing its r q u i r e a m m . That criticisms certainly ~ointto important issues but I am miti &at the kind of case ~rguedby Lord Dcvlin Lo onc &i& has a s m n g prmn foci2 1 to many ordinary men and w m who both conceive of the ntional morality which they s b a v~ ~ mu& y ol he does, and egard it, as ha does, ar "the invijbEc bond'" which holds society ogether. Moreover, as I tried to show in my lnta essay, Sonal lrdarrty and thr Enforcement of M d i y (UnivnsiEy of Chicago w Revicw, 1967) t h a t is a sbiking similarity between these v~ewsand thc widely influential sociological theories of Emile Durkheim and Talcott Parwns. I thnugbt therefore that such views were sufEciiudy important to deserve detailed scrutiny on

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I1 o challenging the main l i n a of Lord Deu his reliance on cemin pruv ish law as evidence that the law does attempt to enforce ". In particular I argued that the provisi~LL ,\, the victim's consent is not a defence to a cksj liberate assault, which Lord Devlin cited as. the legal enforcement of morals, could be explaii e of legal paternalism: the use of the law to prevehi arming himself or effectively consenting to others h*mi recognized that John Stuart Mill would not have thou? dmissible and I criticized Mill for a too absolute and dogma 'ection of paternalism, due to excessive confidence in the be1 at adult individuals always knew their own interests best a qercion-of an individual in his own interest is always fut rd Devlin's reply to my distinction between the enforceml lsitive morality and paternalism is contained in Essay on Mot nd Contempwary Social Morolity included in his hook and i link the most important of all his criticisms of my book. H e atg lat the admission of any form of paternalism as a proper functi f the criminal law cannot consistently stop short with what :rms "physical paternalism" or "the control of a person's physi relfare". Once, parernalism is admitted it must be extended aternalism in matters of morals ("moral paternalism"), h e font F a person's moral welfare to protect him from moral harm, a iis is indistinguishable from the use of the criminal law to enfw dispute in this book

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nm-bicycle M a scat belt in a a r and ro is saved from in, or death It is 1 think quite unclear why facing a i u n a v threat of legal puultier to crmfarm to motal r e q u k -say UI ta his sexual coadu-d k rrJIYdat an r m u i u g Lul. ,~,mwelfare or a good of any kind. This is a serious question however morality is defined; but it is especially serious if the morality in question is identified as simply the widely and strongly supported conventions of a particular society. Is the bare fact that a man deviates from any accepted moral code, which is what in this context Lord Devlin means by morality, to count just in itself as some kind of harm to him? It would he extraordinary to think of a black South African man who rcfuaed m comply with a moral :ode of apartheid, or an Indian w a n i n Rfuaing to comply with suttee when that was rrgardd rs ha moral JUT, as thereby "morally" harming them.dves, and the m c of course applies to homosexuals where the prevding s d mordity prohibits that form of sexual activity. Surely if "mom1 tarelfarc" and "moral harm" have any meaning a d are not ma+ arbitrarily used as vms for confnnnity to and deviation from D sacial morality, must bc some uiteriwi of the "hum" which is independent : (alleged) immorality of cwduct If Jlnr is nor, t h a e is no rrgument that, in consistuucg, those who naepa '"hysical parernalism" must accept the enfmmnent of sDciPl morality as securing nord welfarc a p v e n t i n g the moral harm of the agent.

rhere are ,however two passages where careless writing on my )art may have encouraged some misundastandings. On page 4 of mk I offered three diffaent formulations of the question with I it was concerned. Is the fact that certain conduct is by ;om:

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without the inclusion of these words the three questions are not equivalent. I hope however that my insistence that the distinction I draw between positive and critiul morality, and my statement on p g c m that the question with zarhid~rk bo$a is macaned is one abmt the legal eafonrmcnt ef , p i & t n morality, may have made my intentions clern to most readers. I have h ~ w c v eie~ &wring to John Stuart Mill similnrly failed to pobot put that while he would have rejected 'Lord D ~ i i n \argu-

Mar& 4 8 1 SELEC-

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Brown, D. G. "Mill o rrty ar relity," Philosophical R e u i e ~ '972, p. 133. Dworkin, R. M. ?Lord Devlin and the Enforcement of Morals,'"

1973,

P. 591.

Ten, C. L.."Crimeand Immorality," Modern Imw Review,

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f-cr question. T h e x exhibit the manifold ways in which ' morality has determined the course of the law, somaimcs covcrtly and slowly through the iudicial proceys, sometimes q~cnlyand abruptly through legislation. I shall say , nomore here about this historical causal question, cxcept ':toutter the warning that the affirmative answer which may ,:$ be given to it, and to its converse, docs not mean that an 8.

vcy whcn hr .-xp~csriom r" or "kgal system"? Or should it n toprmu . ;marking off cntain social phenomena from others, a classifificmion wful or illuminating for theoretical purposes? A third question concerns- t . d .. af the moral cnhcl.gm.11g law open to moral c cism? Or d m the admissian the n rule is a valid ltx.+r ~ l preclude e moral crirk&~+w

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The second question may be called

m k Yet in our their common proscription of certain forms of violence and dishonesty) and that they share a common vocabulary of rights, obligations, and duties? These are famous q u m

dktion in zwh an by the speaker of hi

ingly so. The first is that the issue has been clouded by

a loud but often confused debate. Secondly, amid the shouting, too little has been said about the criteria for judging the adequacy of adefinition of law. Should such a drfi-

a1 critique of Social institutions is in

and indeed inconsistent, grou~ids.Some critics have ur :

------. ay On --~~-..Libert~ -onc hundred yeas in wkkh be frames this an-

On Liberty, Chapter I.

16id.

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Vpith which the I a n map-interfere and those with whic

dogmaticon Mill's pa djt, crirics cI&q

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mlity and fox @*

cepted morality needs no argument to justify it, bePIiP .-tl;ll..R it. .- But Mill's.cri,tics l&&st i;a morality which . . .-*,is cnfmced. -..+ back upon this brute assertion. They have in vanced many different arguments to justify the ment of morality, but these all, as I shall attempt tosho rest on unwarranted assumptions as to matters of fa .on certain evaluations whose plausibility, due in la measure to ambiguity or vagueness or inaccuracy of sta ment, dwindles (even if it does not altogether vanis when exposed to critical scrutiny.

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rirhich we are all vastly disturbed. But whatever its cause, h i s mowmat of judicial apinCon has goot Ear. h t y t a 'xlhc House of Lords in the c a s e d $&w v. Dkcciw of -*.-

,,&dges in Shaw's case invoked in their speeches. CONSPIRACY TO COURUFT PUBLIC MORALS

In England in the last few years the question -whether - ~ .criminal . law should b, u s e d topunish - . - - , - ~ -immorality "as the such" -.-. .- has acquired a new practical importance; for there' has, I think, been a revival there of what might.be termed lfgal rnwalkez. . ... ., Judges both in their judicial capacity and in extra-judicial statements have gone out of their way to express the view that the enforcement of sexual morality is a proper part*e law's business-as much its business, so one judge has argued, as the suppression of treason. It is not clear what has provoked this resurgence of legal moralism: there must have been many factors at work, and 'mong them, perhaps, has been the idea that a general stiffening of the sanctions attached to any form of immorality may be one way to meet the general increase in crime by A..

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lish House of Lords represented as a new developmen Americans are accustomed, as the English are not, t

bsured that, in California at least, the provision mak

be regarded as a dead letter. This 1s now nor so wltn

English, and both the use actually made of the lau Shaw's case and the future usc envisaged for it by the House of Lords are worth d e n h . The facts ia Shaw'r .*ire uz nut such as to excite symhad done was to compathyfortbracc

and m indication

itutes, in u@ncaucl d

an obscene

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h n r * ~ pnfcrrd the in tfiE Hlmc d Lords af the charge bot wirh one dissentient

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ztianhshiraarm ~dimktdthatt I.

Thcy lnecle

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udges, into t,kwca ot p l k q hi Dndct to empSrasise this.

rarca perm iaw one or t

judg

AM S~monds),a

Cham,, .lad been abol&hed &id th;lt the Court of .King's Bench was the ~ d morwn o ~of the people and had the superintendency of offences contra bonos mores, he was asserting, ag I now assert, that there is in that Court a residual p e r , where no mate has yet intervened to supcrscde the mm law, to superintend those offenm which me pwjudicid to the public welfare. Such &s will be rare, for Parliament has lot been slow to legidate when aaenrion Bas been sufiiently a& But gaps &urd wit1 always renain, si~mno one ran &eweq way in which tl .vickednw d m m may disrupt the ordm of society. Let me take a &Ie iaaums . ..kt it be supposed that at borne Eunur, p hp early, rkte homosexual practices between a&& conseclringmales are no longer crime. Would it BM bc aa oBexxx if even without bscenity mch were publidp advocated and waged by p ~ l l p h kand adv-ent? Or must sait till Ptsliemmt finds time to deal with su-h onduct? I say, my fmrcls, t l u i if the common law rowerless in such an rvcnt then we should no longer do her revcrcncc. But I say that h a hand is still powerful and that it is foi her Majesty's Judges to play the part which Lxud M d l d painted out to them.' Shaw v. Director of Public Prosecutions (1961) 2 A. 52-53. (1962) A.C. at p. 268.

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Lady Chattcrlcy r L

or learning shall uc on, ~ I I Uu i t is paved that on these gmwm licatimbjustified as being for the public g 4 . m a h - , ~undcrtbrsstatuteis committed. Evidence as to these merits

r dictum. But the il mu& of it as tht H o u a o t ~ o r d to s the exceedingly t q of cormpting&&sF morals h;

the House of Lords approved in this case tha ' ,<-, .... .,* - ... . ce ~ m ~ o s e d @ ~ ~ e ~ ~ f e i ~

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:trongwords hav~ 1 down," and a w sed agreed to d m .-,. of a jury might- yiead-c ~ver be no approach . .. to thl .,~ -...,.n question be "public" in z ~. . .

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same way, though parliament in recent legisl: 'has refrained from making prostitution itself a crime, as 'distinafwm soliciting in a street or public place: it seem* '.'&at i t h a p e n to the Courts under the doctrine of Shaw m:&.what Parliament has not done. Som ,&ant h 2t may be so used has already been c he importance attached by the judges in !K.O the -,--. revi~$~of*dea ~. that the Courts #s th; cur: m ~ m p ~ o t ~ ~ ~ g pu itc manners" may be gauged frbm 'I=-,& that this revival was plainly a deliberate : & f& the antiq& cases relied upon as prece pLdnlr wrnitted, even under the rigorous English doc-

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:mselves of this common law offence to avoid the re&- : ns imposed by statuteor statutory defences. T$wr the i tute' under which the publishers of D. H. L ~ 7: (1961) 2 A.E.R. at pp. 461,466. a The Obsiene Publ~cationsAct 7

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eet Offcnces Act 1959.

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tionf3to give effect to the Committee's rtcommendaticak: concerning prostimtion but Mt to that c&ng hf~U@d i t y , and m m p t s by private members to introd* legislation mddying the law on this subject havk5: failed. .<. What concerns us here is less the fate of the Wolfen Committee's recommendations than the principles which these were supported. These are strikingly si to those expounded by Mill in his essay On Liberty. Thq%: section 13 of the Committee's Report reads:

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dation concerning prostitution that legislation should stitution itself illegal.

;:.&was based on the principle stated simply in section 6 Report as follows: " le Street Offences Act 1959.

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terms, not the law's business.!& It is of some interest that these developments in England have had near counterparts in America. In 1955 the American Law Institute published with its draft Model Penal Code a recommendation that all consensual relations bttween adults in private should be excluded from the sco of the criminal law. Its grounds were (inter dia) that " ham mshe secular interests of the community is inv insrppfcal sex practices in private between consenting ad1 partners";" and "there is the fundamental question of t pratection to which every individual is entitled against st: interference in his personal affairs when he is not hurti othas."" This recommendation had been approved I thc Advisory Committee of the Institute but rejected by majority vote of its Council. The issue was therefore f m t d to the annual meeting of the Institute at Washi :.ma in May 1955,and the recommendation, supported by '&andoquent speech of the late Justice Learned Hand, was, after a hot debate, accepted by a majority of 35 to 24'' 1 It is perhaps clear from the foregoing that Mill's prini ciph are still vprv much alive in the criticism of law, whatAmerican I raitute Wodd h a 1 Code, Tentative Draft 1. P. 277. ' Ibid., p. 178. An account of the d&ts L drea in Time, May 30, 1955. p.

ever their theoretical deficiencies may be. But twice in one hundred years they have been challenged by two masters of the Common Law. The first of thrs was the gput Vktorian judge and historian of the Criminal Law, Wtzjames Stephen. His criticism of Mill is to be found in the sornbre and impcssive book Liberiy, Equality, Frrrtn. nity," which he w m t ~ as a direct reply to Mill's essay Om Liberty. It is evident from the tone of this book that Wphen thought he had found crushing arguments ag* Mill and had demonstrated that the law might justifdy .morality as such or, as he said, that the law s h d bc " ~ s c ~ + w P i g n ~theo fgro lateg on the public q@t,&rd Devlin, now a member of the Hnac ' .?i . a most distinhshed writer on the criminal of Lord law,in : ;say on The Enforcement. of Morals2' to& as : e Report's contention "that there must h: a . &

,maindcr of these lecturcs to an atamination oi them.

I do this bccausc, thmgh their arguments are at points wnfused, dLcy 4 y dlh e the m m h t of ra tional opposition. They are not only admirably stocked with collcrete examples, but they express the consided views oh skilled, sophisticated lawyers experienced in the administration of the criminal law. Views such as theirs arc still quite widely held especially by lawyers both in England and in this country; it may indeed be that they are more popular, in both countries, than Mill's doctrine of Liberty.

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re we consider the detail of these argument k, necessary to appreciate three different but d features of the question with which we are conthe three formulatiom given on page 4 it is

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ilarity in the gener: their arguments is .

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~in~o,-&-e-9uestion in t ne importance or tnis feature y9 that . . ~ u l dplainly be no sufficient answer to show that in fact in some society-our own or 0th regnrded as morally quite right and proper to enforce, '

to preserve it. Nonethelef~Lor

inorality:'! In asking the question, w .legitimacy of a -.. ., . : ': i n s t i t u t i o n ~ o ~ i s n ~ ~e~light of general principl dand knowledge of thefar&. : : . 4 T~&e this point drar, 3 would revive the termi: ogy much f a v d bj t b @ i h r h s 2Y. the last centu ,, . which disringukhs

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i. For where ch ,il, men do not is no prima facie objection, wrong, £01or give justifications of social practices, thou

P . L De;lin ~ ~ ~ ha, kncriticbed for =king the &&her societ~has a r i g h ~to enforce its judgment in morality on the ground that to talk of "right" in such a : meaningless. See Graham Hughes, "Morals and the Cri 7' Yale L.1. (1962) at 672 This criticism is mistaken, just becllrr ~~~d Devlin invokes some general critical principle i i! his affirmativeanswer to the question.

may ask for and give explandons af thcfc practices or may attempt to demonstrate their value. It is salutary to inquire precisely what it is that is prima .cie objectionable in cgal enforcement of morality; often assunmi. related. as] ne is the actual punishment of k r . This &teristically . . . ~ .involves .. depriving him of liberty of m&ent or of property or of association with famiff or iends, or the infliction upon him of physical pain or m a :&h. All these are things which are assumed to be d g ~. :t on others w i t h o ~ ~ ~ ~ justification, ecial and i n k t &. e so regarded by the law and morality of all develcieties. T o put it as a lawyer would, these a;e th&s ley arc not justified as sanctions, are delicts or

rather than physical re!

o n s is what is norma .

with living-ar

ulxovcr uuilgs rnudblc both

liberty may be thought yn evil rcq

to thun-

jdkaI;,

also condemns certain actiuEcrwhehg they zrc harmful

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ty of the society to 5

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of sexual impulses and the consequences of ~ r stention from "ordinary" crime. I.

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ccessful in preaching his message to a given sociembers of it will then be cor

ity of mentally abnormal case esc crimes is not often, sexual impulses gen&ally is, somet . development or'balance of thc

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)r~nciples

which morality ma) ity as such, but only tilitarian morality condemning . ~ .activit ~.~

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xian's opponent, who insists that it is morally permissible 3 enforce morality as such, believes that the mere fact that eitain rules or standards of behaviour enjoy the status of ,ty's positive morality is the reason--or at least part r LIIC reason-which justifies their enforcement by law To doubt in older controversies the oppsedpositions were ifferent: the question may have been whether the statc punish only activities causing secular harm or alsc : disobedience to what were believed to be divinc

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e uccn convicted in Los hnge~csunder a local ncc of the offence commonly known as Urcsorting," b

English eyes. For in additio ishablc under English law, not w a l l y break down figures for sex crimes furthe]

rious, or continuous. Fornication is not a criminal offence in England or in most countries of the civilized world, statbut only a minority of American states do not utes making fornication under certain conditions pi%&&some states make even a single act punishable.'

sceive "normal" enforcement, a ~ in d 1948 there we, rrests for adultery in that city." No one, I think, sl.,. contemplate this situation with complacency, for in com. bination with inadequate published statistics the existence of criminal laws which are generally not enforced place! ~rmidablediscriminatory powers in the hands of the police and prosecuting authorities.

quantity of local or municipal enactments which, in some "irew doubt on his claim that the criminal law should n

'I% we Supreme Court in December 1961 heid the ordi. nance mkr: la contlict with the state laws and void. See in re CQro

NO. 4, p. 205, n. 16.

d eriminal law discussed at length by these writers, it is m a 1 morals, and certainly many, who would wish to

damental principles of English law as it exists today?

they are theoretically unsound. But to see how

.';principlethat would condemn these particular rules could "be right. But there are, I think, good reasons for disputing :!:thesewriters' treatment of these rules as examples of the .-rise of the law solely to enforce morality. We are not nforcrmcnt -'"?raIi, p. 7 .

the principle that the criminal law may be used for tk., purport. Same dowr analysis than these authors give to these cxamplcr is, tun

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statement that "there is omy one y not true. The rules excluding the victim's c u ~ ~ s a l t efence to charges of murder or assault may perfectly ,-.;$, veil be explained as a piece of paternalism, designed to , jrotect individuals against themselves. Mill no doubt '" :ht have protested ag9inst a paternalistic policy of using :( ne law to protect even a consenting victim from bodil: . ..:! (arm nearly as much as he protested against laws use( nerely to enforce positive morality; but this does not Meal hatthese two policies are identical. Indeed, Mill himself vas very well aware of the difference between them: for zondemning interference with individual liberty except ,prevent harm to others he mentions par ate types of ladequate ground which have been proffered for the use ~pulsion.He distinguishes "b8tause it will ,.A

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Lord Devlin says of th

rail himself of it if he did not want it."

But patern

fectly cohemt policy. Indml, it se l&ez faire since Mitl'r day ib om of the c t m m ~ ~ of ~ p b

:ics, even to adults, except under medical prescription is nishable by the criminal law, and it would seem very

or in various predi~amentswhen the judgment is likely to ba clouded; or under inner psychological compulsion; or uader pressure by others of a kind too subtle to be suscepti&of proof in a law court. Underlying Mill's extreme h

themselves, but only with the punishment of the )r his immorality. If, as seems obvious, paternalism

normal human being is like which now seems not to c to the facts. Mil, in fact, endows h i with

of assault. In neither case are we 1 Lord ~ ~ v that i nthe law'sGfunc: loral principle and nothing else.'"'

hkd by external influences; who knows what he wa:

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lengths that may now appear to us

aml what gives him satisfaction or happiness; and prnsues these things when he can.

if they are to accommodate the rule of criminal law unoer

1 asst

that: I from another i

bject of legal punishment were simply to prevent 1 acts this would not be so.

A judge has before him two criminals, one of whom the immorality of tonuring them." Certainly no one who supports this use of the criminal law is thereby bound in consistency to admit that the law may punish forms of immorality which involve no suffering to any sentient being.

THE MORAL OPADATION OF PUNISHMENT

@ears from the circumstances of the case to be ignorant and depraved, and to have given way to a verv g o n g temptation under the influencc of the other, wh 31$. a man of rank and education, and who committeu &e offence of which both are convicted under comp~rativelyslight temptation. I will vcnturc to say that E he made any difference between them at all every j&ge on the English bench would give the first I a lighter sentence than the second." There is, of course, little doubt that Stephen here :

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bring the law into disr _ c, or both. Another reason that priMiplu af just& or faimm b e e n different

in the gradation of legal punishments, this showed that the object of such punishment war not merely to prevent acts

o prevent harm and only harmiill conduct should be pun-

even if they are not harmful.

shed, and, on the other, agree that when the question I b u l d defer to principles which make relative moral

expressed in its scale of punishments, not to conflict common estimates of their comparative wickedness. L Dn is that such a conflict is undesirable on simple ut .'Liberty, Equality, Frufernity,p. 162. Ibid., p. 159. '* Ibid., pp. 147-48.

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t thereby committed to the policy of punishing

most common law jurisdiuiaes it is a criminal of-

PRNATE IMMORALITY AND PUBLIC INDECENCY

abitzrion of the pa& is not a criminal

and a distribution of

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Rostow in his essay defending Lord Devlin against his --'tics?' It is, however, a curiously complex case, and an

valid marriagc. None of this is illegal; but if he goes through a ccnmony of m;u,j,~c, the law steps in not merely ao d e k it invntid bw unish thc bjgsniot Why does the law inrerfere at this point, " 'ng rhc immorality of sexual cohabitation a ' VariOW anmima h ~ b given n to this question. Some b v c suggested 61aR the purpose of the legal punishof bigamy is to protect public records from confusion, rn to ate schemes to misrepresent illegitimate u .-,.,.nate. The American Law Institute sufjtjcar. commentary on the draft Model Penal Code that big ~dultery,even where it does not involve deceldircn, mg! :all for punishment because it is a public afiron" ration to the first spouse, and also because r of matrimony is specially lik on-support, and div~rce."'~ ns to individuals which the \rent by punishment; uggested grounds seem m The harms they st1 ly still think that a c ain even if these harr ley were catered for by the creation c IC onerlrrs wnich penalized not the bigamy but, fc ple, the causing of false statements to be entered in1 '#&cia1 records. Perhaps most who find these various just

&the existing law unconvincing but stiil wish to main it would urge that in a country where dccp rcligiw

thDsewho think that the u! pwrgases is in principle ju BI

I.

:iple and

I

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.

Rostow, scents to kttindtoOW&dgtineuon; forbr7le docs hit include bigamy in hir it&of crimes which the principles of the Wolfeadm Repoft would m p c I ur to Rj.Eet. Thir is not an oversight, for he specifically says of those which are k l u d e d in the list that "thy are all acts which can be done in private and without offence to others."" It is perhaps doubtful whether Mill's principles as

.

,.

question whether or not to punish bigamy will depend on comparative estimates (over which men may of amm diger) of the seriousness of the offence to feelings -and of the sacrifice of freedom and suffering demanded and im-

punishment of bigamy, where no deception was involved, on the ground that it was a ~ublicact offensive to religious tion might be due to the "feelings" as well as to the "in-

I

ctability to parties who are a l l o d to enjoy the sube and parade all the other simukra of a valid mar-

.; individuals; and secondly that the harm should no

e immorality of a p r a w and

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1 intercourse between husbanc ral, but if it takes place in lic it 1 affront to urse L-. ..x n consentm d i n g to conventional uld bc,bath if it WJ& pbm in pub&. But the fact thth; public, could be regarded botfi:a moraland as an affront to.public decency must not blip n these two aspects of :conduc iples m which the justifica&n.of est. The recent English law rc to prostitutian attends to this difference. It hasna pfostitution acrime'but punishes its public ~ifesta in order to protect the ordinary citizen, who is an un the streets,, from some+ing of ~

,"ee&, Lord Simonds in his speech in the H o u s .of Shaw'4 case went out of his way ta profess indir

.,

:matters little what labcl is giviv~.. the O.LL.,UL..

It-may ne d& be objected that mi much 'has been ade h this disc&m of the distinction between what is done in private. For offence to given not only when immoral', vities.or their commercial preliginaries ?re thrust upof t also when those who str

s

t k r s indulge in them in private. Because this is so, it pintless to atend to the distinction between what is done '~i!ately and what is done in publl;&if ~ W JAh : qbt at.

.

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,&used to pmtcct men from ham, so an to include

,though mnrrptually distinct, would not n practice. All conduct s&y w d e m n e d as im4 would then be punishable. i important not to confut. &is argument with the lesrs, which I shall later examine, &at the preservation 6f 1existing social morality is itself a value justifying theuse i coercion. The present argument invokes in support of

'dual liberty as a value involves, as a minimum, acceptdistress occasioned by the bare thought that others areoffending in private against morality cannot constitutc a< harm," except in a few neurotic or hypersensitive persons rho hoe literally "made ill" by this thought. 0thers.may admit that such distress is harm, even in the case of norm4 "ersons, but argue that it is too slight to outweigh the morality. Although these objections are not without force, thep re of subsidiary importance. The fundamental objectioa. urkly is that a right to be protected from the distress which i inseparable from the bare knowledge that others arc acting in ways you think wrong, cannot be acknowledge%' by anyone who recvlgniscs i d v i d u a l liberty as a valu$,

.%e protected

from distress thus occasioned.

led had not subscribed to certain rdigkus or moral

:jl

,

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made vulnerable to the public display by their ow .~. leaves the offender at liberty to do the same thin ,p: +"; ' : is not tamammt to punishing . vate, if he ca gt,;,,*: '',C sirnnlvhwmtr e r ~ . ; b i ~ & w h & q t d o .

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AMa THB EXTX&ME THESIS

When we turn from t h examples ~ which are cer: unputable ro rhe p-"-'--c groumb held to justify .' y it if important to disti

R-thgh&tic

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ible to allot to one or 0th-. dmc twa argument used, but they do, I think, characternain critical positions at the root of most arguments, :y.incidentally exhibit an ambiguity in the expresIn "enforcing morality as such." Perhaps the clearest ~yof distinguishing the two -- theses is .to_see that there are iays two levels at which we may ask whether _ . _ _ some :ach of ~ s --.-.__ i t i v morality e is ...harmful. _ _. .We - may ask --KS this act harm anyone independently of its repercus~.

-

I _

fiz,

taken ira pkcr. But it is only

that there could be such a thin his comparison of sexual immor xace "in private," with treason. deviations,from conventional by the law and come to be known, the conv rality might change in a permissive direction em to the care with homcsexu countries where it is not punish the conventional morality did so chan tion would not have been destroyed or such a development not to he overthrow of government but to a peaceful c change in its form, consistent not only with tion of a society but with its advance. "

VARIETIES OF ENFORCEMENT

last lecture I distinguished a moderate ind form of the thesis that the criminal law might be used to enforce morality. According to the hesis, there is certainly a codtrast between ies tit ously harmful to others (such as murder or assault) and immoral conduct, forbidden by law, which tak'cs 6FGeen consenting adults in private. This concast i t first sight to warrant our regarding ihe legal p r e bition and punishment of the latter as the enforcement "as such." Nonetheless, according to this thc once ive grasp the truth that a society's morality is :essary for its very existence, it becomes clear that any ]oral act, however private its performance, must in the u1.g run be harmful because "it th~eatensthe moral prin:iples on which society is based" and so jeopardizes society's fxistence. . . So on this view the enforcement of morality

-

has maay variants, and it is not al-

y is only of instrt

is Utilitarianism witJmut r hand, we interpret his satemem

tha

rnougn an indispensable one, tor preserving mora

On this view the enforcement of morality is not justifie ate thesis, they do not hold the enforcement of morality or

It is to be observed that Lord Devlin hovers somewhat dsed in the last lecture. ment that the preservation of a so s morality is nece; sary for its existence a& statemen with the suppression of treason suggests we should), then

a i n forms of the extreme thesis than Lord Devlin is of the

. ... ., ... , ~ C ~ L L Cbut S as a value .. -~~

overlook in considerin

we

&rst

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as-

ises used as bfothels. ons which deviate from accepted morality but harm ence. The most common form in England and America of this method of enforcement is the imprisonment, until

the motives are by which,others are induced to abstain

order, and the " c e m and desist orders" under which a lasts. No doubt the first of these is usually presented as a form of punishment for "contempt of Court." An apology

curing comp1,.bnce with the law.

I... i

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s in the distribution of happiness and sulkring-p [eswhich permeate other areas of morality. I should. self argue that even this analogy is su&ient. Yet it 48 retributive theory out of hand. But where &re is n o .. :im but only.a-transgression of--a moral ruleG the view . . .. . -, , t punishment is still called for as a proper retu? for . *.-. thce immorality lacks even this support. Retribution'lrere - ,, .-. .seems to rest on nothing but the implausible claim that in morality two blacks make a white: that the evil of ~ f f c r -:, iqg added to thcevilof immorality as.itspunishment makes I'

_

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r forms of v k m fr is nor* indad,c t o b a n g i e f r a m h k , a q w t m;,.w-~rrrsm+*~arrtn of the ,values &&d~ he thought the legal enfotcedi~t maality constituted or secured. The most prominen d fo many the most distasteful4eature of his thouj gnrhese matters is his general insistence on the legitim: aa "healthiness"' of hatred or resentment for the criimi: d the desire for revenge on hi. It is easy to conch from hie emphasis on this theme that Stephen relies for i positive case on a simple and indeed crude form of retril ,tive theory: that punishment of the criminal is justif because *the feeling of harred and the desire of vff 1 are important elements in human nature which ought to be satisfied in a regular public and leL

:

's insistence on the legitimacy of h e n ana of for revenge is certainly central in his whale outpunishment, and later English ju* have ,atsimilar importance to them. The former L d Justice of England, Lord Goddard, in the last .deon ,capital punishment in the House of Lordsi .said, nor see how it can be either non-Christian or othq seworthy thar the country should be willing, to :e crime."' But it would not bt fair to Stephen to

morals Stephen was principally concerned to identify I expose the inconsistendes and false assumptions ,about xn nature and scriety by which, as he believed, Mill's

y, Eqlrality, Frarcrdy. p I

ainst

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but an a "persecu-

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2 I

16a,165 'PW,p. t h c s (gth Seriea)

.

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ing of anger" as well as "distinct satisfaction

le de-

uinal Law: The sentence of the law is to the mor the public in relation to any offence t wax. I t converts into a pcrmane lat might otherwise be a transie short the inAiction of punishment by law giaed :finite expression and solemn ratification and justi6$; tion to the hatred which is excited by the c o m @ h ~ G of the offence and which constitutes the moral or pbpbi lar, as distinct from the conscienrious sanction of thah irt of morality which is also sanctioned by the
11, Bt-82.

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The punishment for grave crimes shoulll adequately reflect the revulsion felt by the majority of citizens for them. It i s a mistake to consider the object of punishment as bring deterrent or reformative or preventive and nothing else. The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a c r i m e a d f m this point of view there are some mur- 3 ders which in the present state of opinion demand the '' most emphatic denunciation of all, namely the Jcath penalty.'" Natwitfis~rplingthe eminence of its legal advocates, tb'i jurtificarian of punishment, especially when applied tq conduct not harmful to others, seems to rest on a strange mnalgam of ideas. It represen~sas a value to be pursued u the cost of human suffering the bare expression of moral andemnation, and treats the infiction of suffering as a ~niquelyappropriate or "emphatic" mode of expression. Rut is this really intelligible? Is the mere expressic moral condemnation a thing of value in itself to be purwed at this cost? The idea that we may punish offenders ~ a i n sat m d mde, not to prevent harm or suffering or men the repetirk of the offence but simply 9s a means of k e, l o Report of the Ryd Commission on Capital Punishment, s. 53.1.. :C

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-2XpLYiemt of tho

tween consentifig adults in private is not 1 Of €our%thh is not to deny tha where the law forbids these practices there will k some who a w n from them only from feu of punishmat ar laraw in StepheeSs phrasc, they respect dre kwh "wleran mtihtim'' of exfr kustmes their ow0

m m &st &am p&

are mor-

ally wmag.

Thsrem&Edm#~

in hesitant aver

t h mIn csalysts have

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zrrtrktive sexual k @ few mmv i think

Sin, am4 Mr. fudti& ",%l

p. p.

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-ssertion, or does it rest on critical principles connect ing what is said to bc of value hem with other things - d *&re

arc

..-,--:much ir social I lity wh~chis worth preserving even at the in tern these same values which legal enforcemen volves. It is perhaps misleading to say with Lord Devli ' that social morality, so far as it secul ese things, is value because they are required for tl :senation of ety; on the cor . -A

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iatm re rO;lmarpliry rn w r m r p t i c u h mcicty,:.bti$

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ust beware naral'ky as a s c d n s ~ d ~ a l l i t r p r o v i s i m s u a - aryfi -existence of the d l t t g whox morality it

.,

QiirQq3vkrtues.

Wc l u v c ~ t o

tcrd&Bgi"hgtha:virraa t h e y ~ r ~ f o r & ~ u c t d r m y ~

to the most elen :ts of m nature md &rr in which fc ha x led could prw * \ pose to dispense with them. Hence if by the p r e s e d m . -of morality is meant the preservation of the moral a&udc : . $'to conduct and its formal values, it is certainly true that it $s a value. But, though truc, &is is really irrelevant to t k ,

to some fun& principles: Then, prindplc ww ~vcbeen adduced :laim that preservation of any rule of social :i'moralltywas avalue justifying its legal enforcement; some.. thing would have been said. to indicate the source of this "XX

:

..,

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m a t of its r # a Ths

aformofcritid

:

the ultimate relaxation of speciFr e use of legal punishment to free: o immobility the morality dominant at a particul. f utes nothing to the survival mating spirit and formal values of social morality and

of divine amrnands c

From the preservation of morality i

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11s props~ intelligible - .x could ascriic to all SUMmuraliiy 9 status whkh thealogicn)syrtems or the datrinc cb tf - "-

72

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than k simple un-

that g m t slQial r h d like Burkc and Hegel, who were imong tb- most anxious to defend tbc value of the positive ~ n l i t yand customs of partkdar JQcicties against

:conditions of their lives. To use cocrci%%,m -------

,.

moral statur quo at any point in a society's history

ment in the single sentence which I devote to it here. outline, it is the doctrine that the history of human sc eties is a process by whieh the Absolute Spirit manifitself and that each stage in this development is a ratio& or even a logical step and so a thing of value. particular case may be, it is yet there for rational CI m, acceptance or rejection; it prevents the as& of the

iods and the great importance which Mill attached to ty meant that men must never express any convictions

"the state or the public" is not warranted "for the pur-

concerning such conduct or "the experiments:in liva ployed in its support. It should, however, be th-t

i n .-vn1nt;nn~rvrlrfrnrr nf trerl;t;nn

3nrl

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wHch it reprucnts "no one else has anything to say 1". Nor did he think that society could "dnw a lime :re education ends and perfect moral indifference bcgns."" In making these ill-founded criticisms Stephen not resenied Mill, but he ,wed how narrowly he himself conceived of morality , a~d the proce~~es by whkh it is sustained. For Mill's am.'$ cern throughout his may ie to restrict the use of cocrch, not to promats masl hd&rencc. It is m e he includes in the coercion or *mnsaaierwof which he dhppmves not '

think that M U hm coma periIons1y atu to sanctioning coercion even thaugh he regs& these" thin@ as "'strictly inseparable from the anfa-& judgments of ~ s ' ' ' ~ and never to be ia&t~dh the rPkC d p ~Bul t

such as moral blame and dcit is a dimstrous misunderwe cannot uw we mwt be d&tand indifferent. other resourcm w,&h wc have and h 1 d ust: It would k a @cat h d e r s t a n d i a g of this doctline to suppose &at it is one of selfish indifkrence which preten&tbpt b a n beings have no business with each othcn candact in life and that they abould not concun themsclva abwt the well-doing or well-being of one . Huanother unless theis own interest is hvolved. man beings e m to each other help to distinguish the better from t-hc.~azrseand encouragement to choose the former and avoid the latter.

raq in A m d a , was a pow& plea fa- a clearheaded 3ppreciation of the dangem tbat acnampmp the benefit!

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power to oppress a minority, but that, with the spread of^ democratic idcad, it might come to be thought unobjec-

Liberq, Eqw&. Fracmiry, p. 141.

On Likty,Chrptcr 4.

"lbid.

worth paying; but he was much concerned to remind the

:

It seems fatally easy to believe that lovaltv to d e m d w e r individuals loses none of ita importance when the holders of power arc regularly a m t a b l e to the community-that is to the Jtrongeu party therein."" So insistent waa Mill an this theme that, as Morley said, hi$ ;say war in a senn: " m e of the most aristocratic books that ever w a s wrkKhUPI Certainly Mill's doctrine contrasts very sharpi~with the emphasis placed by Stephen bn'the impwclrtcr in m~m1 maal public opinion, and on the function of @merit as an "expression of the moral senthat of the public." Marley indeed said, as :ephen tells u, in his P r c h : that whut Mill would protect the r n i n d y fmm couckn by the majority, Stephen's principle would Stephen npudiutcd Mralcg's charge, and it was perhaps

overwhe-)(

,

the confusion on which it rests.The central misrake is a fad' urr to distinguish the ac-

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it may well be that his

On Lie,C h a w I . Q u in the ~ PIEfPceto Liberty, E q a d i y , Fnremniry, F 21 ibid., p. x ~ i i . lo

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mining how far in will go in tlre direction of the law as hc thinks i t ought to be." Lord Devlin's main concern in this essay is to estab

'

tectcd to some cxknt from

lust hatmfuI--form of rufe

of Parliament has been considered to be the represtntativc the actual working of democracy many forces likely to

encourage the helief that the principle of democratic rule :

high-minded politidan may rn to 3ery in office, and a pliant or passiveattitwit m what the msjoriry thinks right makes this asim than a stem a&rdic to che theory that

n elected i him. But what is understandabk a a ~ m p t a d o to

Inrtcad I shall s-ay a word in conduoion about the method of argument which I have fol1,owed. I have from the be-

inflict the misery of punishment on s which 'kcmto belong to the prc-

has bcat no victim to be avenged infliction of puni&ment as a sym-

nh

m milering and to ~ P Vshawn C what ;*

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$ELECTED BIBLIOGRAPH' OENEML

h& Lo , rd. Tk EXfmment of I(awf8Maccabaem . b ttne in fuhpdeace. af EtVk B~irj& Academyp I%- @.& bold: OxEard Uniwaaity Prm2rggp. "Law, nt:moaxy, and Marality," IIO Pcnarykttirr fmw Rooirv 635 (I+). Hart, H. L A. "Immorality ad Trewn," T&eLricrtg 30, 19B2 p. 162. -. "The Use and Abux of the Criminal Law,"-4 I Lawyer 7 (1941). Zughes, Graham. "Morals and the Criminal .Law: 79 Yrrlt Law Ioumd66a (1962). Mill, John Stuart. On Liberty. Landon, z%v. aw lournal 174 (I@). iephen, Jamcs Fitzjamcs. Librrty, Equality, Fraternity. ' ~ 3 don, 1873. The Preface to the wond edition of 1874.i~:ply to Morley'r defehce of Mill i n ' " ~ rMill's . Doctril A r t y , " c"=..(wigltflyReview, August I, 1873.