Introduction
The relationship between law and morality is a fundamental and enduring question in legal and political philosophy. While it is clear that law often reflects moral values, such as in the prohibition of murder or theft, the extent to which the law should actively enforce a particular moral code, especially in relation to private conduct, is highly contested. The statement that enforcing morality through law is an unequivocal "good" invites a critical examination of this debate. This essay will argue that while the law cannot be entirely separated from morality, using its coercive power to enforce a specific, majoritarian morality is a problematic goal. It will contend that the liberal approach, which limits legal intervention to the prevention of harm, provides a more suitable framework for a diverse and modern society. This will be explored through the lens of the seminal debate between Lord Devlin and H.L.A. Hart.
The Case for Legal Moralism
The primary modern argument for the law's role in enforcing morality was advanced by Lord Devlin, in response to the Wolfenden Report (1957) which recommended the decriminalisation of private, consensual homosexual acts between adults. Devlin argued that society is constituted by a shared or common morality, which acts as a "cement" holding its members together (Devlin, 1965). He contended that a recognised morality is as necessary to society's existence as a recognised government.
From this premise, Devlin argued that society has a right to protect itself from disintegration by using the law to enforce its shared morality. An individual's private actions are not truly private if they offend against the common moral code, because such offences can threaten the moral fabric of society. To determine this common morality, Devlin proposed the standard of the "reasonable man" or the "man in the jury box," whose feelings of "intolerance, indignation and disgust" could signal a threat to the moral order worthy of legal suppression. This perspective can be seen as influencing the judicial reasoning in cases like R v Brown [1994] 1 AC 212, where the House of Lords refused to accept consent as a defence to injuries sustained during private sado-masochistic acts, with the majority expressing concern for the "cruelty and degradation" involved, reflecting a judgment based on public morality rather than purely on harm to others.
The Liberal Response: The Harm Principle
Devlin's position was strongly challenged by the legal philosopher H.L.A. Hart, who drew upon the earlier work of John Stuart Mill. In his essay On Liberty, Mill (1859) articulated the 'harm principle', stating that "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others." This principle establishes a clear boundary for state intervention, protecting a sphere of individual liberty where one's conduct does not adversely affect others.
Hart (1963) deployed this principle against Devlin, arguing that Devlin failed to provide any empirical evidence for his "disintegration thesis" – the idea that a departure from a shared morality would cause society to collapse. Hart pointed out that pluralistic societies can function perfectly well with diverse moral views. Furthermore, he argued that enforcing morality for its own sake was a poor use of the law, which could lead to the punishment of victimless conduct and cause unnecessary human misery. Hart cautioned against what he termed "populism," where the law simply enforces the prejudices of the majority, potentially oppressing minority groups. He argued for a critical approach where laws are justified by reasoned principles, not just by popular feeling. For Hart, the goodness of a law should be judged by its consequences, not by its conformity to a particular moral dogma.
Conclusion
In conclusion, the proposition that law enforcing morality is a good to be aimed for is an oversimplification that ignores significant dangers to individual liberty. Lord Devlin’s argument for a shared morality as the basis for legal intervention, while appearing to champion social cohesion, risks creating an intolerant society where the majority can impose its moral views on minorities through the coercive power of the law. The determination of this "shared morality" is itself a deeply problematic exercise in a pluralistic country like the UK.
By contrast, the liberal tradition articulated by Mill and Hart offers a more defensible position. By limiting the law's scope to the prevention of harm to others, it protects individual autonomy and allows for moral diversity. While the concept of "harm" is not without its own ambiguities, the harm principle provides a more robust and just foundation for the criminal law than the vague and potentially oppressive notion of enforcing public morality. Therefore, rather than aiming to enforce morality, the law should aim to protect citizens from demonstrable harm, leaving questions of private morality to individual conscience.
References
- Devlin, P. (1965) The Enforcement of Morals. Oxford University Press.
- Hart, H.L.A. (1963) Law, Liberty and Morality. Stanford University Press.
- Mill, J.S. (1859) On Liberty. John W. Parker and Son.
- R v Brown [1994] 1 AC 212.
- Wolfenden, J. (Chairman) (1957) Report of the Committee on Homosexual Offences and Prostitution (Cmd. 247). HMSO.
