Essay Question: To what extent it is appropriate for law to enforce moral standards? Law and morality are related concepts but are arguably distinct. The natural language definition of morality is “principles concerning the distinction between right and wrong or good and bad behaviour”1, whereas law, which can escape definition, is commonly understood to be “the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties”2. These definitions are not to be treated as exhaustive, especially the latter which tends towards the positivist understanding of law, but are offered merely as a starting point for discussion and to allow the terms’ contrast. Historically this distinction has not always been observed as many legal systems were based on the moral precepts of particular states’ or communities’ religions and the associated moral code.
It can be impossible in these circumstances to separate law from morality and some nations with state religions have no such separation between law and morality; Sharia law for example exists as part of an overall scheme or framework of belief and faith3 and so it is impossible to make a distinction between the two. Lord Devlin asserted that English law, despite regulating a secular country, was originally informed by Christian morality in what could be described as a similar manner and this is discussed below. Even if this is not the case today as many western countries have entered a pluralistic and secular age many laws still have the effect of enforcing widely held moral beliefs, even if it was not the lawmaker’s intention when drafting them. Examples of these laws range from controlling the opening hours and licencing of liquor vendors to substance abuse laws and prohibitions against murder and assault. Few would argue about the wisdom of prevention of violent crime which has wider social impacts, but it does raise the question of whether the primary reason for these laws being enacted is for policy concerns around public safety or for moral prohibition and sanction.
This may not be of concern regarding laws that enforce widely held moral beliefs as is the case with murder, but becomes problematic if the law is enforcing a morality that is only assumed to be shared. This position has been articulated throughout the Western world with regard to the debate surrounding same sex marriage and is often an argument used by exponents of the decriminalisation of marijuana or even in the less innocuous situation of determining the opening hours of licensed establishments. This begs the question as to what extent then it is proper for law to enforce moral standards? This essay will examine the historical debate surrounding this issue and evaluate the positions taken by the chief proponents of the views on either side of the argument. This question originally arose in the wake of JS Mill’s essay On Liberty.
The introduction of this work outlined the harm principle which was central to Mill’s argument that the negative liberty of the individual against the state and others was paramount4. In effect Mill argued that it was not within the ambit of the state to regulate the moral actions of its citizens except in situations when this conduct affected the rights of others. Furthermore Mill warned against the fusion of law and morality because it would impede the rights of the individual. Even in democratic systems there exists a danger of a tyranny of the majority developing through sheer weight of numbers. This tyranny of the majority would occur where the morality of the dominant social group is forced upon a minority through the mechanism of law which has been pervaded by this morality. As such the law should only concern itself with preventing harm to others.5 Dias has rightly submitted that this position conceals a moral directive, that it is immoral for the law to enforce morality.6 However this allegation can also be made about the contrary position taken by Mill’s critics, chiefly Sir Stephen and Devlin.
They too are making a moral claim and it is the counter claim to Mill’s position; that is that it is moral for the law to enforce morality. Mill is indeed making a moral claim about a moral question (the moral content of law) but he is not using the law to do it so cannot be accused of intellectual hypocrisy. There is an irony in him using a moral argument but it is not clear why he should be precluded from making a claim in this way. One of the earliest and most ardent of Mills critics was like Mill a Utilitarian7. In Liberty, Equality, Fraternity Sir James Stephens attacked the harm principle. He felt that it was impossible to have an entirely self-regarding action as most human conduct would have some effect on others8. It could be argued that many apparent victimless crimes – such as suicide – would have appreciable effects on society and as such society had a right to defend itself.
Stephen felt conduct that was malum in se could be prohibited on this very basis; that is was ‘wrong in itself’ and it was not necessary to show harm to society to sanction it. He went on to defend intolerance as it accords with the unwritten rules operating in society. Morrison contends that the choice of the word ‘intolerant’ was unfortunate as Stephen was likely contending that a level of social control was needed that accorded with the law.9 Indeed the theory seems to be a precursor to Devlin’s later theories regarding the state’s right to defend itself against subversive immorality that could endanger the fabric of society. The modern debate was sparked in England by the issue of the legalising of homosexuality and prostitution which was investigated by the Wolfenden Committee headed by Sir John Wolfenden. The Report claimed that it is not the duty of the law to concern itself with immorality. Further it was argued that homosexuality should be decriminalised on the basis of freedom of choice and privacy of morality. It is with this later conception of a private morality, distinct from the public sphere that Patrick (later Lord) Devlin took umbrage with. He contended that no such distinction could exist between public and private morality.
Law without morality, said Devlin “…destroys freedom of conscience and is the paved road to tyranny”10. Devlin appealed to the idea of society’s “moral fabric.” He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unravelling Devlin asserted that England was historically a nation whose laws were devolved from Christianity as the state religion asserting its moral code, and this necessarily informed the creation of laws. In this historical sense it is improper to argue that there was some separation of law and morality, the debate is a product of modern, pluralistic societies.
Even with the reduction in number of practicing Christians in England, effectively reducing them to a minority, the Christian moral code had imbued the moral landscape through the action of historical fact; “…it has got there because it is Christian, but it remains there because it is built into the house in which we live and could not be removed without bringing it down”11. However he did contend that a state that no longer enforced a state religion had no right to enforce that religion’s moral pattern12. But this is not fatal to Devlin’s position which is to suggest that there exists a general public morality which is the laws’ business to enforce13. This morality may, in England’s case, be influenced by and made up of the leftovers of religion but it reflects the ‘community of ideas’14 that make up society. Devlin is arguing then on the basis of a shared public morality which is necessary for the maintenance of civil society. The necessity of these ideas to the continuation of society empowers the state as society’s protector and places a duty upon it to intervene in the lives of individuals when this morality is threatened. Dias memorably describes the moral institutions of society in Devlin’s conception as being like the legs of a chair; the removal of one may not topple the chair but will make it more prone to do so15.
Due to the seriousness of the threat to society posed by immorality Devlin equates immorality with treason: “The suppression of vice is as much the law’s business as the suppression of subversive activities”16 and further concludes that as there are no theoretical limits on the state’s ability to legislate against sedition there should be no such limits against subversion17. An obvious retort to Devlin is what is the source of the shared public morality that is central to his thesis? Devlin suggested that the common morality could be discerned by asking “What is acceptable to the ordinary man, the man in the jury box, who might also be called the reasonable man or the right minded man”18. Devlin likely chose the man in the jury box because at the time he was writing the verdict of a jury was to be unanimous to be binding and this would provide a measure of safety against arbitrary judgement. A jury will only reach its verdict after the issue has been fully examined and deliberated and the jury box is the place where the ordinary person’s conception of morality is enforced.
This reasonable man test could be seen as a control on Devlin’s theory and he provided further limits on the application of the theory, attesting that law should be concerned with minimum, not maximum standards19. Furthermore individual freedom should be maximised consistent with the integrity of society20, as should the concept of privacy21, nothing should be punished that lies within what society tolerates and this determined by the reasonable man test22, the law should advance cautiously23 and the limits of tolerance shift24. Despite these measures Devlin is still open to criticism. A key issue would be that the theory, despite these elastic principles, has if not the intention, but the capacity for abuse by totalitarian forces. However as Kelly points out the theory deals with the theoretical limits of government intervention in the moral lives of citizens25. The application in practice would be mollified by these ‘elastic principles’.
But it is in this practical application that another challenge to the theory arises. Dias contends that the reasonable man test is too vague as is the “criterion of indignation and disgust”26. Further his Lordship’s “man in the Clapham omnibus”27 is subject to human weakness of judgment that vary between courtroom and the street and could be swayed too easily by the rhetorician or (worse) sophist. A pair of arguments often used by opponents of constitutionalism, which is understood to empower the judiciary to supplant it’s will over that of the public may be analogous to the situation here. Assuming that the jury delivers its moral verdict and does so not beset by the above difficulties there remains the danger in appeal’s cases the jury’s moral expression of the general will would be supplanted by the judges’ own personal morality. This would be profoundly undemocratic and would undermine the theory as the moral expressed could hardly be said to be that of the public. It is inherently undemocratic to permit a small group of non-elected, mostly male, former lawyers to substitute their views on highly contestable moral and social issues for those of the democratically elected parliament.28 A related argument can be made that the courtroom is not an appropriate forum for moral judgement due to its institutional unsuitability. Judges (and it must be said juries) only have access to their own subjective experience and the information presented to them in an adversarial setting which may not be complete.29 Clearly there are practical difficulties in applying the theory. And it could be said that Devlin is a moral absolutist in that he feels that what changes is not morality but the public’s tolerance of transgressions to that morality30.
This elicited scepticism from opponents who did not see moral principles as absolutes which did not change. Of course the chief response was from Professor Hart. His book Law, Liberty and Morality was not only a response to Devlin but was a tardy rejoinder to Stephen as well. Hart started by reiterating Mill’s “harm principle”, showing it’s restatement in the Wolfenden Report31 and submitted in his formulation that a distinction should be made between paternalism and moralism. Paternalism is the law interceding in the lives of citizens in an attempt to protect them from themselves. This is permissible to Hart, he describes it as a “coherent policy”32. There is a latter restatement of Mills argument against the tyranny of the majority and this is used to support the idea that populism can be dangerous in a pluralistic society as it runs the risk of imposing a majoritarian moral code on a minority33. Devlin responded that paternalism ‘tears the heart out of his doctrine’ and Kelly outline’s that in determining ‘harm’ to a person that we as a society protect themselves from we are necessarily making a moral claim 34. Hart attacked the argument used by Stephen that courts would take into regard moral guilt when sentencing a defendant, alleging that even if this was the case it did not show that the enforcement of morality was central to the law.35 Hart challenged Devlin’s conception of morals as an absolute. He pointed out that societies survive changes in basic moral views.
It is “absurd” to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another36. However the success of this argument depends on how ready one is to accept Devlin as a moral absolutist. Kelly rightly points out that Devlin had acknowledged that tolerances shift37, but as Morrison suggested Devlin may have been referring to tolerance of transgression of morality, not a shift in morality itself. The individual’s interpretation will determine the success of Hart’s argument here. The second point to make about this is that it is clear that although Hart accepts “some shared morality is essential to the existence of any society”38 but it is clear from his various statements about Devlin’s position that Hart feels this should have no bearing on the laws of that society. Hart rejects outright that society should be able to sanction through law private harmless immoral behaviour on the mere basis of awareness of it, seeing any liberty allowed in circumstances such as these as “clearly nugatory”39.
Taken to its logical extreme his amounts to a blanket right that everything which anyone else does which can be perceived or has an effect would grant us all a right of absolute censorship over everyone else’s life and this too would clearly negate liberty. Both Hart and Devlin raise important issues. Devlin’s view is pragmatic and focused on the majority rule. Hart’s is more humanistic and individual. However it is arguable that the two were less far apart than originally perceived when taking into account the elastic principles promoted by Devlin. Whether Kelly’s view that Devlin’s claims were modest is determined by our conception of him as either an essentialist when it came to morals or not. It is telling in this regard that Devlin later went on to endorse the recommendations of the Wolfenden report, from which we might conclude he was not as absolute moralist as once thought.
Dias maintains40 that the debate really boiled down to disagreement over exactly how far morality should intrude into the law, not whether it did or indeed whether it should; this was a given. The utilitarian position was focused on only including morality that was essential through the mechanism of paternalism whereas Devlin would have a broader conception, regarding all morality as worthy of the law’s protection. Both sides failed in their aims however; the utilitarians could not quite do away with morality, smuggling it in as paternalism while Devlin could not provide a workable test on limiting legal reinforcement of morals. This suggests that the issue of whether law and morality should be independent is a question in the philosophy of the law that will not dissolve in the near future and may become a perennial one.