There Oughta Be a Law

The Enforcement of Morals

by Patrick Devlin
Oxford, 139 pp., $4.00

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…

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