Patrick Devlin(1905-1992)

Legal Moralism

The Enforcement of Morals 1965

To what extent, if at all, should the criminal law concern itself with the enforcement of morals and punish sin or immorality as such?

Sexuality morality provides clearest test cases.

The Wolfenden Report: prostitution and homosexuality

[The function of criminal law] “is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of physical, official or economic dependence.

   It is not … the function of law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we have outlined.

   … Unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”

“Private immorality” refers to behavior which is judged to be immoral but which does not involve indecency, injury, exploitation or corruption.

Descriptive claim:  much of the criminal law cannot be explained as anything other than the enforcement of morality; its only function is to enforce morality.

Normative claim: We cannot justify the enforcement of morality on religious grounds.

1.  Has society the right to pass judgment at all on matters of morals?  Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?

Yes: morality is necessarily “public”; there cannot be a “private morality”.

Empirical claim:  there is a public morality in our society, and in every society.

A priori claim: what makes a society of any sort is a community of ideas, about how people should behave and live, and how social life should be organized.  Without shared ideas on politics, morals and ethics no society can exist.  Common ideals of the good and beliefs about what is right hold a society together; without those common moral commitments a society would disintegrate.

An aside: How are the moral judgments of society to be ascertained? 

·         Reasonable person standard (not rational person).

·         The judgments of right-minded people.

·         Moral judgments about which we might expect twelve citizens chosen at random to come to agree on.

·         Embodied in the common sense of a community.

Intolerance test:

• More than mere dislike of an action or practice, even by majority
• Must be real feeling of reprobation, disgust, intolerance and indignation
• Must feel that is a vice so abominable that its mere presence is an offence

2.  If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?  To what extent should society use the law to enforce its moral judgments?

Argument from social self-preservation:

1. A recognized morality is as necessary to the preservation of society as a recognized government.
2. A common morality is necessary to the existence of society.
3. A society may use law to ensure its own existence and to protect its essential institutions from disintegration.

C.  Therefore, society may use law to enforce its common morality.

“What if everyone did that?” argument:

1. For every vice, there may come a point at which the vice becomes so widespread as to pose a danger to society itself.
2. If everyone engaged in the vice (or a sizable number), society could not function.

C.  Therefore, it is theoretically impossible to say of any vice that it falls absolutely outside of the concern of society.

3.  When should the law be used to enforce morality?

We must recognize that, just as society has a right to preserve itself and enforce its judgments about moral matters, individuals also have rights to decide for themselves how best to live and to act according to their conscience.

Balancing of competing social and individual interests, to be guided by the following principles:

• There must be toleration of the maximum individual freedom that is consistent with the integrity of society.

• No immorality should be punished unless it lies beyond the limits of tolerance.

• Because the limits of tolerance shift, we must be cautious in using the law, which is harder to change.

• When making laws against immoral behavior done in private, we must balance the interests of society with the principle of privacy (as an individual right and as a practical constraint on the enforcement of the law).

• We must keep in mind the reality of human weakness and not attempt to achieve moral perfection by law.  Law sets (reflects) minimum standards of human behavior, while morals set the maximum standards of human perfection.