I

'he Legal Enforcement of Morality, I

onspiracy to Corrupt Public Morals, 6 Prostitution alid Homosexuality, 13

ositive and Critical Morality, 17

I1 . .. Ihe Use ar )use of Examples, 25

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

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

of this book to make somt thc point and 1

. . t e a . h Devlii &d an anal& k c e n immorality-in the . .: 'q

- I >

x n x of the infringement of a society's shared moral codc-and :.n +& ,..,.: 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

of the book wherc I thlok &IS &ay have been m~sunderstoc some of my critics, and to reply to mu major criticism ur bv Lord Dcvlm. I also add a list of the more unoortant

?,:$*~ ., lat its argurncnrs are mainly of a nebtiye character designed m :,.- leet the sp i f i c use 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 .',.

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 Abue of the Crrmzna Law (Oxfard Lnwyn, 1+t) they were intarded as a contributio~ to the public discusion in Eqland 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 t of Morals, sequendy included w11h o tha 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

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~bited by a society's positive morality. Some of my c r h have taken me to task for *~kiug ova 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 ~oint to important issues but I am miti &at the kind of case ~rgued by Lord Dcvlin Lo onc &i& has a smng prmn foci2

1 to many ordinary men and w m who both conceive of the ntional morality which they s b a ~ v ~ y mu& 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~ews and 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

. , I1

o challenging the main l ina of Lord Deu dispute in this book 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. He 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 ~nralirv

nm-bicycle M a scat belt in a a r and ro is saved from I 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 equk- I -say UI ta his sexual coadu-d k rrJIYdat an rmuiug '''

Lul. ,~,m welfare or a good of any kind. This is a serious question however morality is defined; but it is especially serious if the morality 7

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 con-

, . text 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 E :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 5 "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 1.; . - 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 hae is no . .

rrgument that, in consistuucg, those who naepa '"hysical parer- ' , ,

nalism" must accept the enfmmnent of sDciPl morality as securing , .

nord welfarc a pven t ing the moral harm of the agent. '! .,, . ,%\

> ' rhere are ,however two passages where careless writing on my :. r i ; )art may have encouraged some misundastandings. On page 4 of ; . ' 1

mk I offered three diffaent formulations of the question with I ;. . - - --. . I . I it was concerned. Is the fact that certain conduct is by ;om: .

;;

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 ,pi&tn morality, may have made my intentions clern to most readers.

I have h ~ w c v e ~ ie &wring to John Stuart Mill similnrly failed to pobot put that while he would have rejected 'Lord D ~ i i n \ argu-

Mar& 481

SELEC- - '"" 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.."Crime and Immorality," Modern Imw Review, I

f-cr question. Thex exhibit the manifold ways in which morality has determined the course of the law, somaimcs

'

' covcrtly and slowly through the iudicial proceys, some- times q~cnly and abruptly through legislation. I shall say

, nomore here about this historical causal question, cxcept ': toutter the warning that the affirmative answer which may

8. ,:$ be given to it, and to its converse, docs not mean that an

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 e preclude moral crirk&~+ w

The second question may be called

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

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 judg- ing 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

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

dogmaticon Mill's pa

------. ay On --~~-.. Libert~ - onc hundred yeas djt, crirics cI&q &

in wkkh be frames this an- mlity and fox @*

On Liberty, Chapter I. 16id.

cepted morality needs no argument to justify it, bePIiP .-tl;ll..R it. i;a morality which . . .-*,- is cnfmced. -..+ .- But Mill's.cri,tics l&&st f h back upon this brute assertion. They have in vanced many different arguments to justify the

I ment of morality, but these all, as I shall attempt tosho

1 E. rest on unwarranted assumptions as to matters of fa I

. .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.

CONSPIRACY TO COURUFT PUBLIC MORALS

In England in the last few years the question - whether the -~. criminal . law should , b u s e d A.. topunish -. ~ --,-~- immorality "as 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 mor- alism: there must have been many factors at work, and 'mong them, perhaps, has been the idea that a general stif- fening of the sanctions attached to any form of immorality may be one way to meet the general increase in crime by

rirhich we are all vastly disturbed. But whatever its cause, his 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.

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 sym- pathyfortbracc had done was to com-

itutes, in u@nc aucl d and m indication

(8J an obscene

h n r * ~ pnfcrrd the in tfiE Hlmc d Lords

af the charge bot wirh one dis-

sentient M&j ztianhshiraarm ~ d i m k t d t h a t t I. Thcy lnecle

' n* for English udges, into t,k wca 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 o ~ morwn 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 inter- vened to supcrscde the mm law, to superintend those offenm which me pwjudicid to the public wel- fare. Such &s will be rare, for Parliament has lot been slow to legidate when aaenrion Bas been sufi- iently a& But gaps & urd wit1 always re- nain, si~m no 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, php 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 k and 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 pow- erful 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.

I Lady Chattcrlcy r L

mu& of it as r dictum. But the il or learning shall uc tht H o u a o t ~ o r d s to the exceedingly t q on, ~ I I U u it is paved that on these gmwm

of cormpting&&sF morals h; licatimb justified as being for the public g 4 . m a h - , ~undcrtbrsstatute is committed. Evidence as to these merits

the House of Lords approved in this case tha ~ - - ' ,<-, .... .,.* - ... .

ce ~ m ~ o s e d @ ~ ~ e ~ ~ f e i c nrdi--4-

:trong words hav~ : 2n &e same way, though parliament in recent legisl: 1 down," and a w 'has refrained from making prostitution itself a crime, as sed agreed to dm .,-. 'distina fwm soliciting in a street or public place: it seem*

of a jury might- yiead-c '.'&at i t hapen to the Courts under the doctrine of Shaw ~ver be no approach to thl ,~ ~~

. - . .. ~

m:&.what Parliament has not done. Som ,&an t h 2t may be so used has already been c -..., .n question be "public" in z . - ~. .

' - he importance attached by the judges in !KO . the -,--. revi~$~of*dea ~. that the Courts - #s th; cur: m ~ m p ~ o t ~ ~ ~ g ~ ~ ~ a ~ ~ e ~ ~ ~ ~

pu itc manners" --- may be gauged frbm 'I=-,& that this revival was plainly a deliberate : & f& the antiq& cases relied upon as prece

:mselves of this common law offence to avoid the re&- : pLdnlr wrnitted, even under the rigorous English doc- ns imposed by statuteor statutory defences. T$wr the i

eet Offcnces Act 1959. tute' under which the publishers of D. H. L ~ s 7:

7 (1961) 2 A.E.R. at pp. 461,466. a The Obsiene Publ~cations Act

tionf3 to 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: k~

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. I ; ~ . I , il. .-:.: ,, . , . . . . . > :-

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 Amer- ican Law Institute published with its draft Model Penal Code a recommendation that all consensual relations bt- tween 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 '&an doquent 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 prin- i ciph are still vprv much alive in the criticism of law, what-

American 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 Vk- torian 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 W- phen 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 ~ o f the gro

lateg on the public q@t,&rd Devlin, now a member of the Hnac '

.?i - of Lord . a most distinhshed writer on the criminal law, in : ;say on The Enforcement. of Morals2' to& as :

& e Report's contention "that there must h: a . '

i . 4 ilarity in the gener:

.F their arguments is . . g::. .;, ,, 4

& -1.L '8 2nd edition, Lond,

, maindcr of these lecturcs to an atamination oi them. I do this bccausc, thmgh their arguments are at points wn- fused, dLcy 4 y d l h 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.

'OSITIVE AND CRITICAL MORALITY

re we consider the detail of these argument k, necessary to appreciate three different but

d features of the question with which we are con-

the three formulatiom given on page 4 it is

. ! .~_

~in~o,-&-e-9uestion in t

y9 ne importance or tnis feature that . . ~ u l d plainly 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: 0 ogy much f a v d bj t b @ i h r h s - Y the last centu 2 . , , .

which disringukhs

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 ma :&h. All these are things which are assumed to be d g

~. :t on others w i t h o ~ ~ ~ ~ e c i a l justification, and i n k t &. e so regarded by the law and morality of all devel- cieties. T o put it as a lawyer would, these a;e th&s

ley arc not justified as sanctions, are delicts or

, tor the saKe or some counrervalllilg i. For where ch is no prima facie objection, wrong, ,il, men do not rather than physical re! o n s is what is norma . £01 or give justifications of social practices, thou

P . L ~ ~ ~ De;lin ha, kn criticbed 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 affirmative answer to the question.

with living-ar ulxovcr uuilgs rnudblc both to thun- also condemns certain actiuEcrwhehg they zrc harmful

liberty may be thought yn evil rcq j d k a I ; , for

ty of the society to 5 : he applie

of sexual impulses and the consequences of ~r- ccessful in preaching his message to a given soci-

stention from "ordinary" crime. I. : sexual impah , e embers of it will then be cor

ity of mentally abnormal case

esc crimes is not often, sexual impulses gen&ally is, somet xian's opponent, who insists that it is morally permissible

. .. development or'balance of thc 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~nciples 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 ity as such, but only which morality ma) : disobedience to what were believed to be divinc -

tilitarian morality condemning activit .~. ~ -> ~. -

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

I English eyes. For in additio ishablc under English law,

not w a l l y break down figures for sex crimes furthe]

sceive "normal" enforcement, a ~ d in 1948 there we, rrests for adultery in that city." No one, I think, sl.,,.

rious, or continuous. Fornication is not a criminal offence contemplate this situation with complacency, for in com.

in England or in most countries of the civilized world, bination with inadequate published statistics the existence but only a minority of American states do not stat- of criminal laws which are generally not enforced place!

utes making fornication under certain conditions pi%&&- ~rmidable discriminatory powers in the hands of the police and prosecuting authorities. some states make even a single act punishable.'

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? .';principle that would condemn these particular rules could "be right. But there are, I think, good reasons for disputing :!:these writers' treatment of these rules as examples of the

they are theoretically unsound. But to see how .-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, t u n , . . &. .-. ." ..... . r , u .. I

,~. . : i ' . +

Y&~N- n@ co nnmumm BF M O B A ~ . ~ + ~ .-A

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 '<I. :-

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 ~ ~ ~ p b of

:ics, even to adults, except under medical prescription is or in various predi~aments when the judgment is likely to nishable by the criminal law, and it would seem very 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 normal human being is like which now seems not to c )r his immorality. If, as seems obvious, paternalism to the facts. Mil, in fact, endows h i with

of assault. In neither case are we hkd by external influences; who knows what he wa: 1 Lord ~ ~ v i n that the law'sGfunc: aml what gives him satisfaction or happiness; and loral principle and nothing else.'"' prnsues these things when he can.

raLLA.,-l,.... ." lengths that may now appear to us 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 @ears from the circumstances of the case to be igno- supports this use of the criminal law is thereby bound in rant and depraved, and to have given way to a verv consistency to admit that the law may punish forms of im- g o n g temptation under the influencc of the other, wh morality which involve no suffering to any sentient being. 31$. a man of rank and education, and who committeu

&e offence of which both are convicted under com- p~ratively slight temptation. I will vcnturc to say that

THE MORAL OPADATION OF PUNISHMENT 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 :

, .

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

even if they are not harmful. o prevent harm and only harmiill conduct should be pun- 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 2. 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.

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

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 ' Vari- OW anmima h ~ b n given to this question. Some b v c suggested 61aR the purpose of the legal punish- of 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, f c 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

thDse who think that the u! pwrgases is in principle ju

BI I.

:iple and I

. . . . , . 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 question whether or not to punish bigamy will depend on .. kluded in the list that "thy are all acts which can be done comparative estimates (over which men may of amm '

in private and without offence to others."" diger) of the seriousness of the offence to feelings -and of It is perhaps doubtful whether Mill's principles as the sacrifice of freedom and suffering demanded and im- , 8

punishment of bigamy, where no deception was involved, on the ground that it was a ~ublic act 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 sub- e 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

1 intercourse between husbanc ral, but if it takes place in lic it 1 affront to

urse L-. .. x n consent- m d i n g to conventional Fi

uld bc,bath i f 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 It-may ne d& be objected that mi much 'has been Shaw'4 case went out of his way ta profess indir ade h this disc&m of the distinction between what is 7 .

s done in private. For offence to :matters little what labcl is giviv~.. ., the O.LL.,UL.. given not only when immoral',

vities.or their commercial preliginaries ?re thrust upof t also when those who str

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 ~WJ : Ah qbt at.

:T .. . . . . .. .,

,&used to pmtcct men from ham, so an to include , though mnrrptually distinct, would not

n practice. All conduct s&y wdemned 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

1 existing 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, accept- distress occasioned by the bare thought that others areof- fending 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 .%e protected from distress thus occasioned.

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%' led had not subscribed to certain rdigkus or moral by anyone who recvlgniscs idvidual liberty as a valu$,

:jl , . . i,.!

" made vulnerable to the public display by their ow

. ~. leaves the offender at liberty to do the same thin p:, +;" . vate, if he ca

' : is not tamammt to punishing

gt , ; , , * : ' sirnnlvhwmtr e r ~ . ; b i ~ & w h & q t d o . ',C

8! THe Z40D-W AMa THB EXTX&ME THESIS ' ' .a i . i When we turn from t h ~ examples which are cer: - :.? unputable ro rhe p- "-'--c groumb held to justify .' ; .A

According . ' "7

the :nt of I; : :,q . . . nf i A11310

f ..

y it if important to disti R-thgh &tic

. *JWl ible to allot to one or 0th-. dmc twa

argument used, but they do, I think, character- nain critical positions at the root of most arguments, :y.incidentally exhibit an ambiguity in the expres-

In "enforcing morality as such." Perhaps the clearest - ~y of distinguishing the two -- theses is . to _ see that there are iays two levels at which we may ask whether _ . _ _ some :ach o f ~ s i t i v e --.-.__ morality is ... harmful. _ _. . We - I_ may ask fiz, - --- KS this act harm anyone independently of its repercus- ~.

taken ira pkcr. But it is only

that there could be such a thin VARIETIES OF ENFORCEMENT

his comparison of sexual immor xace "in private," with treason. last lecture I distinguished a moderate ind

deviations,from conventional form of the thesis that the criminal law might be used to enforce morality. According to the by the law and come to be known, the conv

rality might change in a permissive direction hesis, there is certainly a codtrast between ies tit em to the care with homcsexu ously harmful to others (such as murder or assault) and

countries where it is not punish immoral conduct, forbidden by law, which tak'cs

the conventional morality did so chan 6FGeen consenting adults in private. This concast

tion would not have been destroyed or i t first sight to warrant our regarding ihe legal p r e

such a development not to he bition and punishment of the latter as the enforcement

overthrow of government but to a peaceful c "as such." Nonetheless, according to this thc

change in its form, consistent not only with once ive grasp the truth that a society's morality is - tion of a society but with its advance. " :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~eatens the 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-

is Utilitarianism witJmut r hand, we interpret his satemem tha

y is only of instrt 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; a i n forms of the extreme thesis than Lord Devlin is of the

sary for its existence a& statemen with the suppression of treason suggests we should), then

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

overlook in considerin

we ( &rst 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 "cem 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 ' I Y . . : - 5 . * 1 , . .

r forms of v k m fr is nor* indad, c t o b a n g i e f r a m hk,aqwtmw ;,. -~rrrsm+*~arrtn of the ,values &&d~ he thought the legal enfotcedi~t maality constituted or secured. The most prominen

s in the distribution of happiness and sulkring-p d fo many the most distasteful4eature of his thouj [es which permeate other areas of morality. I should. gnrhese matters is his general insistence on the legitim: self argue that even this analogy is su&ient. Yet it 48 aa "healthiness"' of hatred or resentment for the criimi:

d the desire for revenge on hi. It is easy to conch retributive theory out of hand. But where &re is no

.. from hie emphasis on this theme that Stephen relies for

:im but only a transgression of a moral rule the view .. _ . - . . . - -- . G -, , i positive case on a simple and indeed crude form of retril t punishment is still called for as a proper retu? for

. *.-. ,tive theory: that punishment of the criminal is justif thce immorality lacks even this support. Retribution'lrere

%_- ~ ~~ - . - - ,, .-. : because *the feeling of harred and the desire of vff seems to rest on nothing but the implausible claim that in 1 are important elements in human nature which ought morality two blacks make a white: that the evil of ~ f f c r - :, to be satisfied in a regular public and leL iqg added to thcevilof immorality as.itspunishment makes I'

's insistence on the legitimacy of h e n ana of for revenge is certainly central in his whale out- punishment, and later English ju* have ,at-

similar importance to them. The former L d Justice of England, Lord Goddard, in the last .de-

morals Stephen was principally concerned to identify on ,capital punishment in the House of Lordsi .said, I expose the inconsistendes and false assumptions ,about nor see how it can be either non-Christian or othq

xn nature and scriety by which, as he believed, Mill's seworthy thar the country should be willing, to

:e crime."' But it would not bt fair to Stephen to

y, Eqlrality, Frarcrdy. p I 2 I

ainst - h g m s bo s@&f but an a "persecu- I ; PP. 16a,165 ' PW, p. t

h c s (gth Seriea)

. , d . . , A a

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 <ri.mi+ 11 law. . . . The forms in wh id righteous disapprobation are e

cecution of criminal justice is the most emph uch forms, stand to the one set of p dation which marriage stands to the other assions].'

'here is no doubt much that is unclear in this theory.;i

;t-rifying" the feeling which it expresses. But its is clear, and it is a theme which later judges ka?

P. r65, A HrifS)pl iq dir Csinri~d.&~ of E*, 11, Bt-82.

. _ . !I..

The punishment for grave crimes shoulll adequately re- flect the revulsion felt by the majority of citizens for them. It i s a mistake to consider the object of punish- ment 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 imead 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~rpling the 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~s as 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 ~niquely appropriate or "emphatic" mode of expression. Rut is this really intelligible? Is the mere expressic moral condemnation a thing of value in itself to be pur- wed at this cost? The idea that we may punish offenders ~ a i n s t a 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 I

! -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 ex-

fr kustmes their ow0

m m &st &am p& are mor- ally wmag.

Thsrem&Edm#~

in hesitant aver th mIn csalysts have

.

zrrtrktive sexual

. k@i few mmv think " Wollhciw, Sin, am4 Mr. fudti& l%%," p. p.

7 ,t

, , ! , ... - .. '

I-

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

.. ..me; 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 tg whox morality it ,.

-

*&re arc

-A .. -,- -: much ir social I lity wh~ch is 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 . . ..-~.L -..- l~~ .

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

QiirQq3vkrtues. Wc l u v c ~ t o t c r d & B g i " h g t h a : v i r r a a

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 "XX to some fun& principles: Then, in which fc ha x led could prw prindplc ww ~vc been adduced

* \ pose to dispense with them. Hence if by the p r e s e d m :laim that preservation of any rule of social : . -of morality is meant the preservation of the moral a&udc :i'morallty was avalue justifying its legal enforcement; some- : . $'to conduct and its formal values, it is certainly true that it .. thing would have been said. to indicate the source of this

$s a value. But, though truc, &is is really irrelevant to t k ,

.., a f o r m o f c r i t i d

. - .. m a t of its r # a Ths :

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 of divine amrnands c mating spirit and formal values of social morality and

From the preservation of morality i

. . * ' ; I . . '", g than k simple un-

9. . '

. ,. -- 11s props~ that g m t slQial r h d like Burkc and Hegel, who were intelligible - .x could ascriic to all SUM muraliiy 9 imong tb- most anxious to defend tbc value of the posi- status whkh thealogicn) syrtems or the datr inc cb tf - " - tive ~ n l i t y and customs of partkdar JQcicties against

72 , , I'\ '. , , , ,,

y:;. ;.I.= .*-',>% * >. ~ ..., ~& . , --

: 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 iods and the great importance which Mill attached to eties is a process by whieh the Absolute Spirit manif- itself and that each stage in this development is a ratio& ty meant that men must never express any convictions or even a logical step and so a thing of value.

particular case may be, it is yet there for rational CI m, "the state or the public" is not warranted "for the pur-

I acceptance or rejection; it prevents the as& of the

I

concerning such conduct or "the experiments:in liva ployed in its support. It should, however, be .. .'I . , th-t i n .-vn1nt;nn~rv rlrfrnrr nf trerl;t;nn 3nrl i 3

> ,Yi

.;# , .

' 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 bc-

gns."" 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 *mnsaaierw of which he dhppmves not

such as moral blame and dc- it is a dimstrous misunder-

we cannot uw we mwt be d&t and 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 another unless theis own interest is hvolved. . . . Hu- man beings e m to each other help to distinguish the better from t-hc .~azrse and encouragement to choose the former and avoid the latter.

Liberq, Eqw&. Fracmiry, p. 141.

think that MU 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~d h the rPkC d p ~ t Bul

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

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

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 com- munity-that is to the Jtrongeu party therein."" So in- sistent waa Mill an this theme that, as Morley said, hi$

;say war in a senn: " m e of the most aristocratic books , ' the confusion on which it rests.- that ever was wrkKhUPI Certainly Mill's doctrine con-

The central misrake is a fad ' urr to distinguish the ac- trasts very sharpi~ with the emphasis placed by Stephen bn'the impwclrtcr in m~m1 ma- al 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 Prch: that whut Mill would ,

protect the r n i n d y fmm couckn by the majority, Ste- phen's principle would

Stephen npudiutcd Mralcg's charge, and it was perhaps

overwhe-))( it may well be that his

On Lie, C h a w I.

lo Q u ~ in the PIEfPceto Liberty, E q a d i y , Fnremniry, F mining how far in will go in tlre direction of the law as hc thinks 21 ibid., p. x ~ i i .

' i t ought to be." Lord Devlin's main concern in this essay is to estab

lust hatmfuI--form of rufe tectcd to some cxknt from

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

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

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 'kcm to belong to the prc-

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

n h m milering and to ~ P V C shawn what ;*

,.'

, ' . . .

$ELECTED BIBLIOGRAPH'

OENEML

h&, Lord. Tk EXfmment of I(awf8. Maccabaem b ttne in fuhpdeace. af EtVk B~irj& Academyp I%- .@&

bold: OxEard Uniwaaity Prm2 rggp. "Law, nt:moaxy, and Marality," IIO

Pcnarykttirr fmw Rooirv 635 (I+). Hart, H. L A. "Immorality ad Trewn," T&e Lricrtg

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 ' " ~ r . Mill's Doctril

A r t y , " c"=..(wigltfly Review, August I, 1873.