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


- I
. .
.:
.
>
'q
+&
:.n
,..,.:
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 bare fact that conduct, no mam what, was ptoh~bitedby a society's
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
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
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

.,
I1
o challenging the main l i n a 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. 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
-- --.
.I
. .
~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 e q u k - I
-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 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 h a e is no . .
rrgument that, in consistuucg, those who naepa '"hysical parer- ', ,
nalism" 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 :.> ri;'
)art may have encouraged some misundastandings. On page 4 of ;. ' 1
mk I offered three diffaent formulations of the question with 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 , 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- - '""

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, I
 f-cr question. T h e x exhibit the manifold ways in which ' vcy whcn hr .-- xp~csriom r" or "kgal system"?
morality has determined the course of the law, somaimcs Or should it n toprmu . ;marking off cntain
' covcrtly and slowly through the iudicial proceys, some- social phenomena from others, a classifificmion wful or
times q~cnlyand abruptly through legislation. I shall say illuminating for theoretical purposes?
, nomore here about this historical causal question, cxcept A third question concerns- t
.. . ..
. d
':toutter the warning that the affirmative answer which may
8.
af the moral cnhcl.gm.11g law open to moral c
,:$ be given to it, and to its converse, docs not mean that an cism? Or d m the admissian the n rule is a valid ltx.+r
~ l preclude
e moral crirk&~+w

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 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
------. -onc hundred yeas
--~~-..Libert~
ay On 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. rirhich we are all vastly disturbed. But whatever its cause,
i;a morality which is cnfmced.
. . .-*,- -..+ .- But Mill's.cri,tics l&&st h i s mowmat of judicial apinCon has goot Ear. h t y t a
f h back upon this brute assertion. They have in 'xlhc House of Lords in the c a s e d $&w
-*.-
v. Dkcciw of
vanced many different arguments to justify the
I ment of morality, but these all, as I shall attempt tosho
1
I
E. 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.
,,&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
the . law should b, u s e d topunish
A.. - . - - , - ~ -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 lish House of Lords represented as a new developmen
is a proper part*e law's business-as much its business, Americans are accustomed, as the English are not, t
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 bsured that, in California at least, the provision mak
'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
be regarded as a dead letter. This 1s now nor so wltn rarca perm iaw one or t judg AM S~monds),a
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- Cham,, .lad been abol&hed &id th;lt the Court of .-

pathyfortbracc had done was to com- 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 inter-
itutes, in u@ncaucl d and m indication vened to supcrscde the mm law, to superintend
those offenm which me pwjudicid to the public wel-
(8J an obscene 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~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
h n r * ~ pnfcrrd the crime. Would it BM bc aa oBexxx if even without
in tfiE Hlmc d Lords bscenity mch were publidp advocated and
af the charge waged by p ~ l l p h kand adv-ent? Or must
bot wirh one dis- sait till Ptsliemmt finds time to deal with su-h
onduct? I say, my fmrcls, t l u i if the common law
sentient M&j rowerless in such an rvcnt then we should no longer
ztianhshiraarm do her revcrcncc. But I say that h a hand is still pow-
~dimktdthatt erful and that it is foi her Majesty's Judges to play the
'
I. Thcy lnecle n* for English part which Lxud M d l d painted out to them.'
udges, into t,kwca ot p l k q hi Dndct to empSrasise this. 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 to
s the exceedingly t q on, ~ I I Uu i t is paved that on these gmwm
of cormpting&&sF morals h; licatimbjustified as being for the public g 4 . m a h - ,
~undcrtbrsstatuteis 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-
:trongwords 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 d m .-,. 'distinafwm soliciting in a street or public place: it seem*
of a jury might- yiead-c '.'&at i t h a p e n to the Courts under the doctrine of Shaw
~verbe no approach
.- . .. to thl m:&.what Parliament has not done. Som
,~ ~~
~

-...,.n question
. be "public"
~.
. -
in z ,&ant h 2t may be so used has already been c
he importance attached by the judges in
' -

!K.O the
-,--. revi~$~of*dea
~.

#s th; cur: m ~ m p ~ o t ~ ~ ~ g
-
that the Courts
~ ~ ~ a ~
---
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 ~ 7: s
7 (1961) 2 A.E.R. at pp. 461,466.
a The Obsiene Publ~cationsAct
 tionf3to give effect to the Committee's rtcommendaticak:
concerning prostimtion but Mt to that c&ng hf~U@- terms, not the law's business.!&
d i t y , and m m p t s by private members to introd* It is of some interest that these developments in England
legislation mddying the law on this subject havk5: have had near counterparts in America. In 1955 the Amer-
~. failed. .<. ican Law Institute published with its draft Model Penal
What concerns us here is less the fate of the Wolfen Code a recommendation that all consensual relations bt-
Committee's recommendations than the principles tween adults in private should be excluded from the sco
which these were supported. These are strikingly si of the criminal law. Its grounds were (inter dia) that "
to those expounded by Mill in his essay On Liberty. Thq%:
section 13 of the Committee's Report reads:
k~ 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,
dation concerning prostitution that legislation should after a hot debate, accepted by a majority of 35 to 24''
1
It is perhaps clear from the foregoing that Mill's prin-
stitution itself illegal. i ciph are still vprv much alive in the criticism of law, what-
American I raitute Wodd h a 1 Code, Tentative Draft
;:.&was based on the principle stated simply in section 6 1. P. 277.
' Ibid., p. 178.
Report as follows: "
An account of the d&ts L drea in Time, May 30, 1955. p.
le Street Offences Act 1959. I ; ~ . I ,i l.-:.:
.

. . , . . :.-.
>
,,
 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 ~theo fgro
lateg on the public
of Lord
.?i-
q@t,&rd Devlin, now a member of the Hnac '
. 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 .
ilarity in the gener:
g::. .;,.F
i.4
,, 4
their arguments is . . y9
& -1.
2nd L
edition, Lond,
'8
,maindcr of these lecturcs to an atamination oi them. I do
this bccausc, thmgh their arguments are at points wn-
fused, 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.
'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
ne importance or tnis feature
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 may ask for and give explandons af thcfc practices or
-.. ., . .legitimacy of a may attempt to demonstrate their value.
: ': i n s t i t u t i o n ~ o ~ i s n ~ ~e~light of general principl It is salutary to inquire precisely what it is that is prima
'
,

: : . 4 T~&e
-
dand knowledge of thefar&. .cie objectionable in cgal enforcement of morality;
-...,
this point drar, 3 would revive the termi:
0 -
'

ogy much f a v d bj t b @ i h r h s 2Y. the ,, .

last centu often assunmi. related. as]
which disringukhs 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 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

,il, men do not rather than physical re!
is no prima facie objection, wrong, o n s is what is norma .
£01or give justifications of social practices, thou
~ ~ ~ ha, kncriticbed for =king the
P . L De;lin
&&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.
with living-ar ulxovcr uuilgs rnudblc both to thun- also condemns certain actiuEcrwhehg they zrc harmful

liberty may be thought yn evil rcq jdkaI;, 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 i m p a h , 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~csunder a local
I English eyes. For in additio
ishablc under English law,
rious, or continuous. Fornication is not a criminal offence
in England or in most countries of the civilized world,
but only a minority of American states do not stat-
utes making fornication under certain conditions pi%&&-
some states make even a single act punishable.'
quantity of local or municipal enactments which, in some
ncc of the offence commonly known as Urcsorting,"
not w a l l y break down figures for sex crimes furthe]
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.
"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? .';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
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, statement that "there is omy one
tun .r , u
.
, . &
. .-. ."..... ..I
y not true. The rules excluding the victim's c u ~ ~ s a l t
,~. efence to charges of murder or assault may perfectly ,-.;$,
.:
.i
+
'
veil be explained as a piece of paternalism, designed to ,
Y&~N- n@ connmumm BF M O B A ~ . ~ +.-A
~
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 ~ ~ of

~ p b

:ics, even to adults, except under medical prescription is or in various predi~amentswhen 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 thati nthe 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
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 im-
morality which involve no suffering to any sentient being.
THE MORAL OPADATION OF PUNISHMENT
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
@ears from the circumstances of the case to be igno-
rant 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 com-
p~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 :
 ,.

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 &the existing law unconvincing but stiil wish to
through a ccnmony of m;u,j,~c, the law steps in not main it would urge that in a country where dccp rcligiw
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 givenn 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 thDsewho think that the u!
ate schemes to misrepresent illegitimate u pwrgases is in principle ju
.-,.,.nate. The American Law Institute sufjtjcar.
commentary on the draft Model Penal Code that big BI I.

~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 :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 ..
k l u d e d 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 ~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 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 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 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 ~ W JAh
: qbt at.
.:T ..
. . ....,
 ,&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, 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 i d v i d u a l 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
'',C sirnnlvhwmtr e r ~ . ; b i ~ & w h & q t d o .
gt,;,,*:

8! THe Z40D-W AMa THB EXTX&ME THESIS

'
.a

-
'
i . i When we turn from t h examples~ which are cer:
;
:.?
.A
unputable ro rhe p-"-'--c groumb held to justify .'
y it if important to disti
R-thgh&tic

. *JWl
According ible to allot to one or 0th-. dmc twa
.' "7
I; ::,q the :ntof argument used, but they do, I think, character-
f
. ..
.. nf i A11310
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
~yof 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 morality
e _ _. .We
is ...harmful. 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
by the law and come to be known, the conv be used to enforce morality. According to the
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
"as such." Nonetheless, according to this thc
overthrow of government but to a peaceful c
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~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-
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 Cbut
S 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 " 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 ' IY..:-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 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
s in the distribution of happiness and sulkring-p d fo many the most distasteful4eature of his thouj
[eswhich 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 n o from hie emphasis on this theme that Stephen relies for
. _
:im but only.a-transgression
.. -
of--a moral .
t punishment is still called for as a proper
ruleG
..
the view
retu?
-,
for
.
, i positive case on a simple and indeed crude form of retril
. *.-. ,tive theory: that punishment of the criminal is justif
thce immorality lacks even this support.
%_- ~ ~~ .- - - ,, .-. Retribution'lrere
seems to rest on nothing but the implausible claim that in
: because *the feeling of harred and the desire of vff
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
- PP. 16a,165 'PW,p. t
ainst h g m s bo s@&f but an a "persecu- I;
h c s (gth Seriea)

. ,d..,Aa
 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.
. _ .
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 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 pur-
wed 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 I
!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
t
h mIn csalysts have

zrrtrktive sexual
. k@ few mmv
i 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

*&re arc

..-,--:much ir
-A

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 .
. .
..-~.L -..-
l~~

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

..
..me; QiirQq3vkrtues. Wc l u v c ~ t o
tcrd&Bgi"hgtha:virraa
ust beware
naral'ky as t h e y ~ r ~ f o r & ~ u c t d r m y ~
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 .,
 to the most elen :ts of m nature md &rr "XXto some fun& principles: Then,
in which fc ha x led could prw prindplc ww ~vcbeen 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'moralltywas 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
,

.., aformofcritid

. - .. 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~
intelligible - .x could ascriic to all SUMmuraliiy 9
that g m t slQial r h d like Burkc and Hegel, who were
imong tb- most anxious to defend tbc value of the posi-
status whkh thealogicn)syrtems or the datrinc cb tf - "- tive ~ n l i t yand 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.
I
particular case may be, it is yet there for rational CI
acceptance or rejection; it prevents the as&
m,
of the
"the state or the public" is not warranted "for the pur- I
concerning such conduct or "the experiments:in liva
ployed in its support. It should, however, be
th-t
.. .'I
.,
i n .-vn1nt;nn~rvrlrfrnrr nf trerl;t;nn 3nrl
i3
> ,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 think that M U hm coma periIons1y atu to sanctioning
in the coercion or *mnsaaierwof which he dhppmves not coercion even thaugh he regs& these" thin@ as "'strictly
inseparable from the anfa-& judgments of ~ s ' ' ' ~
such as moral blame and dc- and never to be ia&t~dh the rPkC d p ~Bul t
it is a dimstrous misunder-
we 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
raq in A m d a , was a pow& plea fa- a clearheaded
othcn candact in life and that they abould not concun
themsclva abwt the well-doing or well-being of one 3ppreciation of the dangem tbat acnampmp the benefit!
another unless theis own interest is hvolved. .. . Hu-
man beings e m to each other help to distinguish the
better from t-hc.~azrseand encouragement to choose the ' power to oppress a minority, but that, with the spread of^
former and avoid the latter. 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 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 w a s 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 P r c h : 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 .
loQ u in the ~ PIEfPceto Liberty, E q a d i y , Fnremniry, F
21 ibid., p. x ~ i i .
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
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 to

n 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 '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 ;*

,.'
 , ' . ..

$ELECTED BIBLIOGRAPH'

OENEML

h& ,
Lord. 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.