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Patrick Devlin and Morality in the Law

First, we must state clearly the questions to be examined, these could be loosely put in It is important to state Devlin’s case as much debate has sprung from and refers to it.

In 1959 Patrick Devlin gave a lecture, later published as, “The Enforcement of Morals” concerning whether morality ought to be protected by the law.

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He begins equating morality with religion and its distinctions between good and evil. Religion states immorality is sinful. Should the criminal law concern itself with the enforcement of morals and punishment of sin; what is the connection between crime and sin?

Devlin refers to the “Wolfenden Report” which looked particularly at the area of homosexuality and legal enforcement of morality.

In their finding the Wolfenden committee put forward the following;

“Our own formulation of the function of the criminal law so far as it concerns the subjects of this inquiry…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 especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.

It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.” [Ref:1, p.2]
The Wolfenden committee recognised a realm of personal or private morality, and indeed immorality.

They felt it important that both society and the law give the individual freedom of choice and action in that no act of immorality ought to be a criminal offence unless accompanied by other publicly offensive or injurious features such as public indecency, corruption or exploitation.

Devlin criticised using the term ‘private morality, and prefered to term individual behaviour that was not in line with public morality, (as he felt all morality was) as being ‘private behaviour’.

Immoral private behaviour ought to be tolerated unless it is injurious or causes public offence. He also asked what is meant by freedom of choice and action, is it the freedom to decide for oneself what is moral and immoral or society neutral, or is it the freedom to be immoral if one wants to be?

Devlin argued for the latter as he felt society must be a community of ideas, both politically and morally: shared ideas about ways people should behave and live.

Devlin felt that moral standards are derived from religion and claim validity from that religion.

He wrote,”It may or may not be right for the State to adopt one of these religions as the truth, to found itself upon its doctrines, and to obey and deny any of its citizens the liberty to practise any other. If it does not, then it is illogical that it should concern itself with morals as such. But if it leaves matters of religion to private judgement, it should logically leave matters of morals, also. A State which refuses to enforce Christian beliefs has lost the right to enforce Christian morals.” [ Ref 2: p. 5].

Devlin felt that in a secular, or pluralistic society, the state criminal law must justify its provisions independently of religious morality, of what is and isn’t ‘sinful’.

The smooth functioning of society and the preservation of order require that some activities be regulated. Rules for this purpose rarely involve a choice between good and evil, being designed for uniformity and convenience.

Crimes of violence offend against both moral law and criminal law and social order.

English law would not recognise the consent of the victim as a defence, (except where it is an essential element of the crime, such as rape). Devlin accounts for this by saying, “There are certain standards of behaviour or moral principles which society requires to be observed, and the breach of them is an offence not merely against the person who is injured but against society as a whole.” [Ref. 1, pp. 6-7]

Devlin believed there is a justifiable cause for collective judgement only if society is affected. Without a collective judgement, there is no case for intervention, individual opinions of disagreement or disapproval do not make something a social matter. He also felt it is not possible to set theoretical limits in advance or define areas of morality outside the law inflexibly or rigidly.

If the morality changes the law can also follow to reflect the change.

How are moral judgements to be ascertained?

By guaging the opinion of the majority, or the consent of the individual?

Devlin opted for deciding by the morality of common sense, also termed the ‘standard of the reasonable man’ (person).

Laws should be principles every ‘right-minded’person would accept as valid, that which any twelve persons drawn to the jury box, after discussing, might agree upon unanimously.

Devlin felt the law must strive to strike a balance between the rights and interests of society and the individual, and when in conflict the two must be reconciled.

“There must be toleration of the maximum individual freedom that is consistent with the integrity of society.” [ Ref. 1, p. 17]
Both the limits of tolerance and the extent of departure from moral standards vary from generation to generation.

There are many who feel the danger to society must be balanced against the extent of the restriction. Judges and legislators show reluctance to sanction invasions of privacy in the detection of crime except when action is invoked by an injured citizen.

When all involved are consenting adults and ‘injury’ is only to morals, to personal beliefs being offended,then the public interest in the moral order can be balanced by claims of privacy.

Devlin’s main points are;

  • the law exists for the protection of the individuals and institutions of society,
  • the law exists for the protection from; injury, annoyance, corruption and exploitation, the
  • law must be derived from the sense of ‘wrong’ and ‘right’ in the community as a whole,
  • the proper concern of criminal law is with minimum standards of behaviour and moral law with the minimum standards,
  • if convincing moral training is lacking the administration of the law suffers,
  • morality is the set of standards of which the reasonable person approves,
  • if morality changes, then the law may follow to reflect the change when its inevitability and stability has been documented as incorrectly timed change leads to instability.

Devlin has been criticised as being too conservative by some, too radical by others, and some allege incompletely dealing with aspects important to the issues.

Since 1959 when Devlin wrote “The Enforcement of Morals”, and perhaps partly because of it, there have been changes in attitudes to moral debate.

There is an emphasis towards tolerance of private behaviour of consenting adults.

The 1977 report of the Royal Commission on Human Relationships stated;”…24)

Throughout our inquiry we encountered many areas of genuine moral conflict, areas where it could not truly be said that the law represents a general consensus of what acts should or should not be punished. in such cases, it is our view that the law should not attempt to be the arbiter of moral values, but should take a neutral stand.25)

Increasingly morality has to become the preserve of the individual, making responsible choices in the knowledge of the consequences of actions and regard for the well-being of those affected. This implies that human beings are able to act together on the basis of individual moral decisions united in a harmonious social whole. Such a view depends on tolerance, rather than dogma, and requires knowledge and understanding. Some continue to see social diversity as synonymous with moral decay and social collapse.

A major irony of their fear of permissiveness is that it leads to a situation where knowledge itself is not permitted but is suppressed in the interests of stability.26)

The diversification of society parallels the growth of participation by individuals in affairs that touch on them and the extension of questioning into previously forbidden areas. Questioning implies two things: the right of the questioner to know the answers and the possibility of change if the answer is not adequate.” [ Ref: 2, Volume 1:Law and Morality, p.25]

These observations are equally accurate for Australia today, a society where both ethical and cultural pluralism exists.

In pluralist societies, there are problems with deciding on and defining a morality which maximises good and prevents or minimises harm, as there are likely to be conflicts.

In the chapter, “Ethical pluralism and moral education,” Kurt Baier addresses such problems and gives the formula to check if the demand that morality should be acceptable to everyone is justifiable.

He states that acceptable answers must be provided for three central questions as follows;

1). Why should there be restrictions by social rules?
2). Why should they be these rules rather than others?
3). Why should one follow these rules when they can be broken without consequential punishment or injury to the ‘offender’?

Baier says that if the answers provided are not acceptable the morality taught will appear, …”not as a necessary condition of the good life but as an unnecessary evil.” [Ref: 3, p95]

Therefore there is reason to adopt a morality if one has found adequate reason in the circumstances, and if one has found no stronger reasons for refraining or doing something different.

However, Baier makes a distinction between the sphere of private morality, which he describes as those areas that do not attract public moral sanctions but are self-regulatory.

He says that what does no empirical harm to others should be considered private morality.

Where there is a need for a common course of action then at least some of us must compromise our moral convictions. To resolve interpersonal conflict we can resort to settlement by public morality.
Baier gives examples of , …” those for which public morality should provide a uniform solution as well as public moral sanctions, but to which legal sanctions should not be attached, (honesty, promise-keeping, adultery); and those for which there need be no uniform moral solution and no public sanction…legal or moral, (smoking, self-indulgence, timidity).” [Ref: 3, p.105].

This seems to go along with J.S.Mill’s argument that interference with one’s liberty of action is justified only to prevent harm to others.

However, the concept of ‘harm’ is controversial and needs qualification and definition.

Is harm restricted to physical injury or suffering – or is it also to cover what is ‘offensive’, such as ‘public indecency’? If so, who sets the standards and on what criterion?

In his book, “Law, Morality and Religion in a secular society”, Basil Mitchell examines Professor Hart’s definitions and answers to the above questions.

Prof. Hart counters the claim for a need for the law to protect citizens from what is merely offensive by saying, “…That such distress is not ‘harm’, (or at the most) that it is ‘harm’ but so slight as to be outweighed by the misery occasioned by the punishment.” [Ref:4, p.54]

He goes on to say that anyone who recognises the value of individual liberty would not value depriving of liberty of action on the grounds that it merely causes them distress from being offended.

He goes on to criticise the Wolfenden committee’s wish to use the law to, “… provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence.” [Ref: 4, p. 54].br> He asks; is not safeguarding against ‘corruption’ the protection from moral harm, and should the law to have the right to protect any adult from what is termed corrupt?

We should draw a distinction between physical good and moral good. The scope of legal paternalism should be to protect physical good – necessary for existence, and that the questions of moral good should be self-regulatory, as when legal paternalism is extended to them they become ‘victimless crimes’.

There seems to be general agreement that children should not be encouraged towards accepting or behaving in certain ways. Basil Mitchell demands further justification of this by saying, ” It is necessary to show – a)that the law’s interference in the case of children is not prompted by a concern for their moral welfare, b) that in cases where such concern is admitted it does not presuppose any judgement as to the relevant behaviour among adults.” [Ref; 4, p. 56]

He goes on to say the reason the law prohibits sexual intercourse with a girl under sixteen is to protect her from corruption – taken from the moral law against sex before or outside of marriage, and that it is in conflict with and in contradiction to the law prohibiting marriage with a girl under 16 except by petition to the court.

There may be a physical consideration behind this law, as well as the issue of exploitation. It has long been observed that females who become pregnant in adolescence have an increased risk of complications during pregnancy and childbirth and that due to the enormous drain on their bodies and hormonal changes they may not develop physically to their full potential capacity. If the mother is very young her physical growth will be ”nipped in the bud’ so to speak.

Moral concern has guided the development of criminal laws, but if they can be justified on non-moral grounds they should be maintained after the moral laws (which brought them into being) become irrelevant.

In “Social Philosophy” Joel Feinberg explores many relevant issues concerning ‘rights’, and the law’s grounds for coercion.

Feinberg states, ” Most societies have recognised that there are some relatively permanent desires present in all men that must be singled out, given precedence, and made sacrosanct.” [Ref: 5, p.24].

When recognised and protected by law, these are rights. Which interests are determined in this way are decided in accordance with the established value judgements of each community.

Feinberg extends J.S.Mill’s idea that the state has the right to make criminal directly injurious conduct, (such as wilful homicide, assault and battery, and robbery) to include that which weakens public institutions we all have an obvious, solid, direct stake in, such as tax evasion.

Interest is defined as something you possess, even when diminished; one can help or hinder another’s individual interest in; bodily health, safety and security of one’s person, family, friends or property.

Feinberg says some interests are more important than others and deserve legal protection to avoid harm to them.

He states that not all harms cause hurt. This is because not all harm is noticed, and if not noticed it does not hurt. In some cases, the whole harm is in the knowledge of it. (For example: finding out about a spouse’s isolated act of infidelity – if it was ‘safe sex’).

Hurt encompasses not only physical pain but also mental distress. However, if the distress is not likely to be followed by further harm to other interests it is probably too trivial to warrant coercion to prevent or punish it, eg. hurt feelings.
Some offences are harmless, they do not lead to any further harm of interests other than the one being offended. According to Feinberg, offence and hurt are, “…harms of a relatively trivial kind, (unless they are of sufficient magnitude to violate interests in health or peace)…but the harm of such a trivial kind that it cannot by itself ever counter-balance the direct and immediate harm caused by coercion.” [Ref: 5 p.28].

Feinberg also makes another distinction, between harm and merely failing to benefit another. We harm them when we deny or deprive them of something they need, especially something needed to survive. We merely fail to benefit them when we deny or deprive them of something they do not need.

This ‘unmet needs’ criterion can be applied to determine when a damaged interest becomes an actual injury.

There is also a difference between being in a harmful condition, and undergoing a change in a harmful direction to one’s condition.

Feinberg provided some useful definitions of what constitutes harm and hurt. He extended Mill’s ideas on individual liberty and gave us a more succinct justification for legal coercion when harm is done to important interests, not merely offence to individual beliefs.

Devlin’s points and the composite criticisms of Hart, Mitchell and Feinberg clarified for me the meaning of Nietzche’s statement that morality is like sign language, in that one must know what it is to benefit from it.

Conclusion

In moral issues concerning behaviour that is merely ‘sinful’ or offensive, without further harm to important interests such as health or safety, the criminal law should not have the power to intervene or use legal coercion.

Victimless crimes involving individuals’ choice of personal morality should be outside the realm of criminal law, considered private behaviour.

Our legal system does not enforce Christianity, or any other religion, therefore public or legal morality should be concerned with that which causes harm, and not merely offence to others, and keep out of private consenting adult behaviour.
John Stuart Mill’s assertion that the only justification for limiting one person’s liberty is to prevent harm to another represents a starting point in the discussion, but his principle is not universally accepted within the philosophical community and certainly is not applied in the real world. Private consensual homosexual behaviour is a recurring focus of this debate: it was the focus of the governmental report in Britain in 1965, which prompted Lord Patrick Devlin to explore the issue, and remains a common example of private activity that society seeks to regulate solely on the basis of its immorality.

Joel Feinberg

A more recent review of the issue comes from Joel Feinberg.26 In the last volume of his series The Moral Limits of the Criminal Law, Feinberg criticized Devlin’s argument as simply a series of confusions over “sometimes” and “always”: he said that although society is a community of ideas in some sense, it does not follow that society must always share moral beliefs. “We cannot live together without any agreement, but it is not the sole alternative to no agreement that there be total agreement.”28 Devlin’s “social disintegration thesis,” as Feinberg called it, seems to assert that society should view any change to the present morality, not just any morality, a threat; morality, as it exists, must be wholly preserved. Devlin confused the need to preserve some common morality to some extent with the preservation of a specifically defined morality, the present morality, in its entirety.29 The resulting problem is how to define the present morality. Feinberg pointed out that if morality is defined by reasonable people who may be racists or would-be witch burners, Devlin’s argument is absurd; to avoid this absurdity Devlin would have to establish criteria for reasonableness beyond just the will of the majority of members of the community.30

Although Feinberg conceded that the criminal law may take morality into account, for example by lengthening sentences based on greater moral blameworthiness, contrary to Devlin he maintained that this does not justify morality invading all of the criminal law.31 His argument likens the criminal process to “a great moral machine . . . [t]he questions the liberal raises about this moral machine is: ‘which actions should cause their doers to be fed into it?’, and his answer is: ‘only those actions that violate the rights of others.'”32 Although the criminal law does serve a moral purpose it does not follow that the criminal law’s only legitimate purposes are moral ones, and that all more purposes are equally legitimate as reasons for criminalization.

H. L. A. Hart

Devlin’s relatively simple argument has met with much opposition. The first response came from H. L. A. Hart, an American professor, who disputed Devlin’s thesis saying that it assumes that immorality jeopardizes society, when in fact there is no evidence of that proposition.13 While Hart conceded that some shared morality is essential to the existence of society he questioned Devlin’s leap from there to the proposition that a change in society’s morality is tantamount to destroying it– that society is equal to its morality14– because that implies that the morality of a society can’t change, or rather that if it does one society is actually disappearing, and being replaced by another.15 According to Hart, Devlin’s argument amounts to an assertion that law should preserve existing morality, not that legal enforcement of morality is a good in and of itself.16 By contrast, Hart asserted that society cannot only survive individual differences in morality but can profit from them, though he does not specify exactly how it might profit.17

Finally, he said that even if there is a valid argument for the legal enforcement of morality, Devlin’s argument as to how that morality should be ascertained is flawed: “. . . no one should think even when popular morality is supported by an ‘overwhelming majority’ of marked by widespread ‘ intolerance, indignation, and disgust’ that loyalty to democratic principles requires him to admit that its imposition on a minority is justified.”18 Hart’s view of the connection between society and society’s morality is more flexible than Devlin’s. A society’s morality can change without society disappearing and democracy does not require the enforcement of uniform morality, as Devlin suggested.

In place of Devlin’s justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality based on a distinction he drew between immorality which affronts public decency and that which merely ‘distresses’ others based on the knowledge that immoral acts are taking place.19 In Hart’s view society may, for example, outlaw the public expression of bigamy20 or prostitution,21 because such could be considered an affront to public decency, as a nuisance,22 while it would not be justifiable to outlaw purely private manifestations of these types of behaviour, or of consensual homosexual behaviour in private,23 even though some might claim to be distressed by the private behaviour as well.24

At this point Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: “[n]o social order which values individual liberty could also value the right to be protected from this type of distress.

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