Devlin was right: law and the enforcement of morality.

• Author: Dworkin, Gerald
• Position: Patrick Devlin

[The police power is] vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws ... either with penalties or without ... as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise.(1)

Chief Justice Shaw

It is now thirty-five years since H.L.A. Hart published Law, Liberty and Morality,(2) which marked the beginning of the Hart-Devlin debate concerning the enforcement of morality by the criminal law. It is 125 years since James Fitzjames Stephen published Liberty, Equality, Fraternity, which initiated a similar debate with John Stuart Mill.(3) Both of these debates concerned the legitimate role of the use of criminal sanctions to punish immoral conduct. As Hart framed the issue, the question can be formulated as: Ought immorality as such be a crime? It is claimed that Mill and Hart say that the answer is "No"; it is said that Fitzjames Stephen and Devlin say "Yes." Contemporary liberal theorists such as Joel Feinberg, Thomas Nagel, and Ronald Dworkin are united in agreement with Mill and Hart that it is not a legitimate function of the state to punish conduct simply on the grounds that it is immoral.(4)

Contemporary legal opinion also divides as to the constitutionality of various statutes that forbid conduct based on the alleged right of the state to enforce moral views. Whether the issue is consensual homosexual conduct between adults,(5) nude dancing in bars,(6) or the ritual sacrifice of animals,(7) judges disagree about whether the state should regulate conduct based on its moral status.

In this Essay, I want to distinguish two issues. The first is the substantive question of whether the state actually should regulate particular conduct, e.g., homosexual sex, on the grounds that it considers the conduct immoral. The second is the question of whether it is illegitimate "in principle" for the state to do so. On most issues concerning specific laws, I side with Hart, against Devlin, in believing that the conduct in question should not be criminalized. I side with Devlin, however, in believing that there is no principled line following the contours of the distinction between immoral and harmful conduct such that only grounds referring to the latter may be invoked to justify criminalization.(8)

I.

My first task is to attempt to clarify what divides Devlin and his opponents. We know that this division concerns whether a principled line can be drawn between the kinds of reasons that the state gives to justify coercive restrictions on behavior. What does it mean, though, for there to be a principled line? I shall begin by looking at the line that liberals--my term for those who oppose Devlin--claim to be the right one, and I will then look at what they mean by that line being the correct one.

The historical context for the Hart-Devlin debate was the release of the Report of the Committee on Homosexual Offenses and Prostitution--popularly referred to as the Wolfenden Report, after its chairman. The Committee defended a particular conception of the function of the criminal law:(9)

[I]ts function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation 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 special physical, official or economic dependence.(10) Having said what the law allows by way of reasons for coercion, the report made clear at least one ground that is not allowed: "It is not the duty of the law to concern itself with immorality as such."(11)

The usual rubric under which one discusses these issues is that of the enforcement of morality by the criminal law. The specific formulation attributed to the above claims is that the law ought not to be in the business of enforcing morality. The obvious rejoinder, however, is: Why then does the law protect citizens against, among others, injury, harm, offense, and indecency? Surely, it is because for someone to inflict these on another without adequate justification and excuse is to act wrongly, i.e., immorally. Indeed, if one begins to examine some of the more specific categories, the most prominent of which is "harm," one reaches the conclusion that the term itself is a normative one. Not every setback to a person's interests counts as harmful for the purposes of justifying coercion. Only those that are "wrongs" count.(12)

One answer that is sometimes given--that although rape is both harmful and immoral, the reason the law prohibits it is only that it is harmful--is not available to liberals who wish to reject some thesis about the enforcement of morality. The thesis has to be formulated in terms of different parts of morality. Some parts may be enforced by the law; some parts may not.

Where the line is drawn may differ from liberal to liberal, but they all agree that various rights may be enforced in order to protect individuals against attacks on interest. Indeed, on some views this is part of the notion of a right itself. Other notions that are invoked include the protection of autonomy and respect for persons. What are the parts of morality that may not be enforced? Here, matters are less clear, but they seem to include various ideals, such as ideals of virtue and character, certain ideals of fairness or fittingness, and ideals of sexual conduct.

With respect to certain issues, liberals may divide. Consider Good Samaritan laws--laws requiring so-called "easy rescue." Some liberals, such as Feinberg, approve of such laws because they think that people are harmed by not being rescued.(13) Others who think of harm as being lowered from some status quo believe that failure to rescue is not a harm. They believe that people do not have a right to be rescued, but that it is "indecent" to fail to come to someone's aid in such circumstances.(14) If they wish to require such rescue, they are willing to enforce some ideals, but not others. To defend their thesis, then, liberals have to be able to specify some division of morality into parts and argue that only some of the parts may be protected legitimately and promoted by coercion.

For our purposes, we shall draw the line more or less as Feinberg does--the protection of autonomy and equal respect for persons.(15) This line is not one that is more vague or fuzzy than others we use, yet it does seem to separate the activities that many liberals believe may be regulated from those that may not be. We now need to see what kinds of arguments are available to justify such a line, and whether they are adequate.

II.

Devlin's views differ from those of liberals in at least two respects. There are substantive differences and differences of theory. Devlin often looks like a consequentialist who has a different view about the consequences. His famous equation of immorality with treason and his advocacy of the right of any state to defend against either make a claim about the harm that would occur if the actual moral code of a society were allowed to be attacked and weakened.(16) Hart has said all that needs to be said about the various forms the thesis "an established morality is as necessary as good government to the welfare of society"(17) may take, and the evidence (or lack of it) for various claims to protect the shared moral views of society. The trouble with many of Devlin's claims is the same as that faced by the strategic theorist who, when asked about his various "calculated risks," admitted that he had never done the calculations.

Even when Devlin comes to the view, based on consequentialist considerations, that some form of conduct may be regulated, he often agrees with the liberals that it should not be. He does so because he believes that

[t]he arm of the law is an instrument to be used by society, and the decision about what particular cases it should be used in is essentially a practical one. Since it is an instrument, it is wise before deciding to use it to have regard to the tools with which it can be fitted and to the machinery which operates it.(18) In addition to these practical matters, however, Devlin refers to "general statements of principle which it may be thought the legislature should bear in mind when it is considering the enactment of laws enforcing morals."(19) These include: "toleration of the maximum individual freedom that is consistent with the integrity of society ... that in any new matter of morals the law should be slow to act ... [and] more tentatively ... that as far as possible privacy should be respected."(20)

In spite of the fact that Devlin refers to these as "principles," it is quite clear from the context that these are considerations of value that he thinks ought to be used in deciding when matters that are legitimately within the province of the law actually should be enforced. He distinguishes among three questions:

1. Has society the right to pass judgement at all on matters of morals? 2. If a society has the right to pass judgement, has it also the right to use the...