There Oughta Be a Law

Everywhere, including England, the English are celebrated for their toughminded passion for facts and cases, and for their indifference to, or incapacity for, general ideas. The truth, I am convinced, is just the opposite. Ever since the times when John Locke lit the fuse for the social and political explosions of the eighteenth century with his doctrine of natural rights, and Jeremy Bentham, the great legislator’s legislator and moralist’s moralist, hypnotised an era with his ideal of the greatest happiness of the greatest number (which certainly might have been better dubbed the principle of inutility), English thinkers have displayed a constant and insatiable appetite for the more imponderable questions of political, legal, and moral philosophy. So impatient are the English of concrete, remediable social ills that they are unable even to discuss the revision of their archaic laws against buggery without entering into an interminable hassle over the general relations, both de facto and de jure, between positive law and moral law. And while individual English immoralists sweat out their (allegedly) miserable existences, there rises above the darkling cities of the English plain an ever-expanding cloud of acrimonious controversy over the propriety of legal enforcement of something called “morality as such.”

Amid the intellectual pleasures afforded by the debate over the enforcement of morals, its particular historical occasion has been virtually forgotten. For our purposes, nevertheless, it is essential to have it in view. The facts, are these. For many years there has been a growing demand on the part of thoughtful men of all classes and sexual habits for a thorough overhaul of the whole English criminal law pertaining to homosexuality and prostitution. In response to this demand, the so-called Wolfenden Committee was appointed in 1954 to examine and to make recommendations regarding that law. Three years later, the Committee made its report, recommending that private homosexual practices between consenting majors should no longer be a crime and that, although prostitution as such should not be illegal, laws should be enacted to drive it off the streets, this on the ground that public soliciting is “offensive” to ordinary citizens. The Committee’s recommendations concerning prostitution were in fact made the basis of legislation introduced into the House of Commons; its recommendations concerning homosexuality, however, have not yet been followed up by the government, and private attempts to modify the present law on that subject, to my knowledge, so far have not succeeded.

The grounds on which the Wolfenden Committee based its recommendations, which continue to provide a great bone of contention, are as follows:

[The] function [of the criminal law], as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, [or] inexperienced…

This position, as was immediately pointed out by commentators, is in most respects closely similar to that taken by J. S. Mill in his famous essay On Liberty. According to Mill, the coercion of any individual is justified solely in order to prevent harm to others. What above all does not concern others, and hence does not fall within the proper scope of law, is the individual’s own good. “His own good,” as Mill spells it out, “either physical or moral is not a sufficient warrant. He cannot rightfully be compelled to do or to forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right.” But then, lest illiberal persons construe the notion of “harm to others” too loosely in attempting to justify legislation restricting the sphere of individual freedom, Mill emphasizes that harm to others does not include mere “inconveniences”; the latter we are all bound to endure for the sake of that great common good which alone it is the business of law to implement, namely, liberty and that individuality which, in his view, is liberty’s sweetest fruit.

This point about inconveniences, it should be noted, seems not to have greatly impressed either the Wolfenden Committee itself or its most persuasive advocate, the Oxford Professor of Jurisprudence, H. L. A. Hart. For the Committee acknowledges the desirability of legislation to preserve both public order and decency, and what falls under the scope of “indecency,” as Hart interprets it, can scarcely be viewed, without embarrassment, as much more than an inconvenience. Indecency, so understood, pertains only to public acts which give public offense, such (allegedly) as bigamy; it does not apply to even genuine immoralities such (allegedly) as homosexual acts between freely consenting adults when conducted in private. Mill himself admits, to be sure, that in certain circumstances acts causing offense to the feelings of others conceivably may deserve blame and perhaps punishment. But, as Hart points out, the passage in which the admission is made is very obscure; nor is the point made with that sort of emphasis which Mill normally gives to propositions about which he deeply cares. The main tenor of Mill’s argument, at any rate, surely requires us to suppose that he himself would not view indecency as more than an inconvenience or nuisance which must be suffered by those whose sensibilities it offends.

Having retreated this far from the strong position which Mill prepared for them, it is not surprising that liberals should be asked by their conservative opponents whether they must not be ready to retreat still further. Such are the questions which have been raised by Lord Patrick Devlin in the book here under review. Lord Devlin, who has been a member of England’s highest court, is perhaps the most eminent among critics of the liberal position; if readiness to change one’s mind is a sign of reasonableness, he may also fairly claim to be by far the most reasonable man on either side of the controversy, for he changed his mind publicly a number of times. The history of his positions is fascinating. As he points out in his Preface, he got into the act in the first place when he was asked to give evidence before the Wolfenden Committee as a member of the Queen’s Bench who was in favor of reform of the criminal law concerning homosexuality and prostitution (another judge, opposed to reform, was also asked to give evidence on the other side). Lord Devlin’s account of his general attitude toward homosexuality is worth giving in his own words:

I was in favor of reform. I agree with everyone who has written or spoken on the subject that homosexuality is usually a miserable way of life and that it is the duty of society, if it can, to save any youth from being led into it. I think that that duty has to be discharged although it may mean much suffering by incurable perverts who seem unable to resist the corruption of boys. But if there is no danger of corruption, I do not think that there is any good the law can do that outweighs the misery that exposure and imprisonment causes to addicts who cannot find satisfaction in any other way of life. Punishment will not cure and because it is haphazard in its incidence I doubt if it deters. Those who are detected and prosecuted are unlucky; and the full offence is frequently proved only because one or the other in his weakness confesses. I do not think that any judge now imposes a severe sentence in such cases. I cannot myself recollect ever having passed a sentence of imprisonment at all.

To the Committee, accordingly, Lord Devlin proposed, as “one of those illogical compromises that would be rejected out of hand in any system of law that was not English,” that while the offense of buggery should be retained, the lesser offenses of indecent assault and gross indecency should be abolished unless the acts were committed on youths. “The proposal,” adds Devlin, “was not favoured by the Committee and I dare say they were quite right.”

When the Wolfenden Report appeared, the only parts which, at the time, Lord Devlin completely approved was the statement that there is a realm of private morality which is not the law’s business, and the distinction made there between crime and sin. However, Lord Devlin, by his own admission, is not a learned doctor either of jurisprudence or of the history of ethics. He tells us disarmingly that he had never thought about the distinction mentioned above (otherwise than superficially), and while he was aware that “it derived its force from the teachings of Bentham and Mill,” he had never read On Liberty from beginning to end and “certainly could not have put…[his] finger on…[Mill’s] celebrated definition of the function of criminal law.” Nevertheless he had absorbed some of Mill’s ideas at second hand and they had made a “permanent impression” on his mind. At this point (1958) fate took a hand in the form of an invitation to Lord Devlin to give the second Maccabean Lecture on Jurisprudence before the British Academy. This honor was “not to be declined but yet to be accepted only with much misgiving.” In order to do his homework in preparation for the lecture, Devlin reread On Liberty, the effect of which, marvelous to say, was just the reverse of what he had expected. In his case, instead of confirming his “simple faith” in Millean principles, study destroyed it, and in the Maccabean Lecture, itself originally entitled “The Enforcement of Morals” and included under a different title as the first chapter of the present volume, he gave the reasons that had persuaded him of the untenability of his old liberal principles.

Lord Devlin now contends, to my mind plausibly, that the distinction between private and public morality is obscure and indefensible. There is, in his view, simply morality itself: the rights and wrongs of human conduct, whatever they are, in the spheres of action of which they happen to be true. If homosexual relations are morally permissible when conducted in private between adults, as Devlin himself appears reluctantly to admit, then that also is a fact of the moral universe. Nor should it be confused with the further moral facts, such as they may be, concerning the prerogatives of private moral criticism. Devlin admits that conflicts of public and private interests are matters with which morality must concern itself. But that, plainly, is another question. When such conflicts occur, moreover, it is not impossible to adduce certain general rules about how “in our society” the balance ought to be struck. Whatever that balance is, morality is in principle entitled to demand that the law should enforce it.

This view is very abstract, but on its own level I find it reasonable. But now Devlin begins to blur the issue by making distinctions of his own which I find no less obscure than those he argues against. And he further weakens his position by making what look like factual claims which, however, he leaves completely unsupported. In sum, his view appears to be that since society is always entitled to protect itself, and since, in the absence of a vigorous, deeply believed established religion, morality is society’s life blood, society is entitled to employ the law to enforce “the moral law.” But Devlin never makes it clear whether he means by “the moral law” merely the common moral attitudes of society or something else which might be called “moral truth”; nor does he give any account of what “society” (on this score, I may add, he merely follows in Mill’s footsteps) is or what gives it its right to self-preservation. Instead he argues, I think fatally for his position, that “a rational man who is also a good man, may have other standards” than the moral law which “the reasonable man” approves and which allegedly is necessary to society’s existence. But even if the “rebel” is rational in thinking his standards to be right, he is, according to Devlin, irrational if he thinks that he should not be forced to obey the moral law which, I gather, is given, not to sages, but to that paragon of reasonableness, the man in the jury box. At times, indeed, Devlin conveys the impression that for practical purposes the content of the moral law should be determined by public polls. This is bad enough; what makes it worse is that Devlin is prepared to see the results of such polls written into the law of the land. This, whatever it calls itself, is tyranny and ought, everywhere and on principle, to be resisted.

Fortunately, the Maccabean Lecture is not Lord Devlin’s last word on his subject. His subsequent lectures, republished in this volume, are distinctly better. In the first lecture he confined his discussion of the relationship between the criminal law and the moral law mainly to those crimes that can also be called “sins,” e.g., sodomy. The second, third, and fourth lectures, which were written somewhat later and have the benefit of Professor Hart’s strictures against the Maccabean Lecture, are concerned with the relationship between the moral law and other branches of English law—what Devlin calls “the quasi-criminal law,” the law of torts, and the laws of contract and marriage. These chapters, which show Devlin’s grasp of his own legal materials, are of great interest. In his book, Law, Liberty, and Morality, Professor Hart attempted to show that even the existing law concerning bigamy, which Devlin had introduced analogically in support of his contention that the law enforces sexual morality, can be defended on grounds having to do only with questions of public harm or injury. Hart’s argument is subtle, but, like Devlin, I do not find it wholly convincing. For the question is not merely whether the law of bigamy can be defended on such grounds, but also whether it usually is so defended. In any case, Devlin shows beyond peradventure that in the actual operation of the laws of Torts and Contract, at least, what are generally regarded as moral considerations plainly are at work. For example, the aim of the English common law of contract has been primarily to expedite commerce, not to protect private persons from the consequences of their own innocence or foolishness. This being so, from the standpoint of the common law, the sanctity of the contract has meant the sanctity of the written word “in the form in which it is ultimately enshrined.” The final contractual document “must speak for itself,” and it generally does so, fine print and all. Woe to the poor devil who fails to read it, or, reading, fails to understand what he has read. The common law is indifferent to motives for breaches of contract; whether a particular breach is owing to “perfidious and dishonorable” motives or to sheer misfortune, the consequences are the same, and the common law means to exact its toll. Manifestly such a law results, in many cases, in gross injustice. Accordingly, says Devlin, there came into existence a law of equity precisely in answer to the complaint that legal justice failed “to give effect to moral obligations that were generally recognized.” Thus, even if cases concerned with the legal punishment of bigamy are in principle arguable without recourse to prevailing moral attitudes toward bigamy, it cannot reasonably be maintained that as a general rule no connection exists between “the law” and what Devlin persists in calling “the moral law.”

In the last three chapters, Lord Devlin returns, with varying results, to more general and speculative questions. In the fifth lecture, he considers how, for purposes of the secular law, it may be possible to determine what the moral law is; in the sixth, he reexamines Mill’s views on liberty in morals; in the last lecture, he speculates about the sort of doctrine which might replace Mill’s. All of the later lectures are preoccupied with the criticisms that Hart directed against “The Enforcement of Morals,” and I must say that they show both that Devlin, as an analyst of conceptual relations, has learned something from Hart, and that, on occasion, the pupil has bettered his master. I have space remaining only for one or two instances in which, as it seems to me, Devlin’s arguments tell against Hart.

In the first place, Devlin shows that Hart’s own qualifications of Mill’s position are more considerable than Hart seems to think. For example, Hart agrees with the view, which he calls “paternalism,” that in such spheres as euthanasia men not only are but ought to be protected against themselves. But he then goes on to distinguish between legal paternalism and legal moralism, i.e., the doctrine that the law should enforce moral sentiments. The distinction, Lord Devlin contends, is unclear and unfirm. For what in the world is the basis of paternalism save the common moral sentiment that, where men’s lives or permanent well-being are at stake, particularly in circumstances where their judgment is apt to be clouded or their wills incapacitated, they ought to be protected against themselves? It appears to me that Devlin is also right in contending, against Hart, that he who denies that moral considerations can rightly affect decisions concerning the severity of legal punishment, but not decisions regarding punishment as such, has in effect swallowed an elephant while gagging on its tail. In this connection, it also should not be forgotten that while Devlin has defended the principle of the enforcement of morals, he himself has, so far as I know, never defended or administered harsh punishments to those who run afoul of laws that attempt to enforce sexual morality. Furthermore, conservative though he is, Devlin does not really depart radically from the main line of Hart’s own basic position concerning both law and morally which is, after all, essentially utilitarian.^* Both of them are, in Devlin’s sense, “reasonable” men who believe that the business of government, and hence of law, is ultimately to advance, or protect, the general interests of society, to preserve society, and to reduce the common miseries and injustices within it. But “society,” for them both, means the social system of the modern, moderately progressive, nation state. In relation to the social system, in this sense, Hart, no less than Devlin, is deeply a conservative. He is ready to tolerate deviant sexual behavior, kept discreetly from public view, because, and to the extent that, it does not jeopardize the legal system and the basic social establishment of which the latter is an integral part. But, as in his position concerning bigamy, he too can be harder than nails when it is a question of the integrity of the system or the sensibilities of its votaries. “It is important to see,” he tells us, “that if, in the case of bigamy, the law intervenes in order to protect religious sensibilities from outrage by a public act, the bigamist is punished neither as irreligious nor as immoral but as a nuisance. For the law is then concerned with the offensiveness to others of his conduct, not with the immorality of his private conduct….” In practice, however, this intolerable “offensiveness” amounts to nothing more or less than what the establishment, or its functionaries, cannot adjust to, or else will not tolerate. If it comes to that, Lord Devlin’s “rebel” gets as short shrift in practice from the Oxford professor as he does from the Lord of Appeal himself.

The differences between Hart and Devlin mainly concern questions of fact or of meaning. Devlin is sometimes dogmatic. But then so is Hart, who no more gives evidence for the “innocuous conservative principle” that there is a presumption that common and long established institutions are likely to have merits not apparent to the rationalist philosopher (e.g., Mill and Bentham), than Devlin does for the presumption (and it is rarely treated as something more) that preservation of the moral law is necessary to the preservation of society. Devlin talks about the moral law at times as if it were something written not only into the consciences of jurors, but also into the very heavens. But so, in effect, does Hart, whose own “critical” moral attitudes are presented as if they were convertible with morality itself.

How far have we gone afield from the situation of the poor sodomist who seeks relief from a law for which, as it stands, few men have anything good to say! The fault is not entirely Lord Devlin’s nor Professor Hart’s. It is the fault also of the Wolfenden Committee which thought it necessary to state general grounds for its recommendations. Indeed, it is the fault, if fault it is, of the English who make so much, in practice, of general principles. In any case, I am impressed by the fact that they still take the trouble to argue with one another and that they are concerned with moral and not merely with “pragmatic” considerations. And I am impressed by the fact that Lord Devlin, at the risk of appearing a fool, has lately had the courage to change his mind again in a letter to the London Times in which he now supports the recommendations of the Wolfenden Committee. Who else has done more?