Introduction
The question of what conduct should be criminalised is a central issue in criminal jurisprudence. It forces a consideration of the very purpose and limits of the state’s coercive power. While some crimes, like murder or theft, seem to have an obvious place within the criminal law, the justification for criminalising other forms of conduct, particularly those that are considered ‘immoral’ but may not cause direct harm to an identifiable victim, is far more contentious. The debate is often framed as a conflict between two opposing philosophical standpoints: the liberal harm principle, famously articulated by John Stuart Mill, and the concept of legal moralism, most notably defended in a legal context by Lord Devlin. This essay will argue that while the harm principle provides the most robust and safest starting point for a liberal democracy, the reality of the criminal law in England and Wales shows that it is not, and perhaps cannot be, the sole justification for criminalisation. The law often reflects a degree of legal moralism and paternalism, but this should be viewed with caution as it risks extending the reach of the criminal law into the private lives of citizens in an unjustified manner.
The Liberal Position: The Harm Principle
The classic liberal answer to the question of what should be criminalised is found in John Stuart Mill’s essay On Liberty. Mill argued for a simple but profound principle: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others" (Mill, 1859). This is known as the ‘harm principle’. According to this view, an individual’s own good, whether physical or moral, is not a sufficient warrant for state interference. So long as a person’s actions only affect themselves, or affect others who have given their free and undeceived consent, society has no right to intervene through the law. This principle is grounded in the value of individual sovereignty and autonomy.
The harm principle found a powerful modern advocate in H.L.A. Hart, who argued that it provides a crucial barrier against the "brutal" and "useless" imposition of popular morality on individuals (Hart, 1963). For Hart, the use of the criminal law to enforce morality was unacceptable because it inflicted punishment and suffering without the justification of preventing harm. This liberal position formed the basis of the recommendations of the Wolfenden Report (1957), which famously concluded that there "must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business" (Wolfenden Committee, 1957, para. 61). The report’s recommendation to decriminalise consensual homosexual acts between adults in private was a direct application of Mill’s principle, arguing that such acts did not cause harm to others and therefore should not be the subject of criminal sanctions.
The Moralist Counter-Argument: Lord Devlin and Societal Cohesion
The liberal consensus articulated by the Wolfenden Committee was powerfully challenged by Lord Devlin in his Maccabaean Lecture, later published as The Enforcement of Morals. Devlin argued that a shared, public morality was the invisible bond that held society together. He contended that society has a right to protect itself from disintegration, just as it has a right to protect itself from subversion or external attack. If certain acts are viewed by the ordinary person as "a real feeling of reprobation, intolerance, and disgust," they threaten this shared moral fabric (Devlin, 1965). In such cases, society is justified in using the criminal law to suppress them.
For Devlin, the key test was not whether an act caused harm to a specific individual, but whether it was offensive to the collective moral judgment of society, often embodied in the views of the "man in the jury box". He argued that "the suppression of vice is as much the law’s business as the suppression of subversive activities" (Devlin, 1965). This position, known as legal moralism, directly contradicts the harm principle by asserting that the enforcement of morality is a legitimate end in itself for the criminal law. It suggests that society has a right to be protected from what it finds to be morally repugnant, even if the conduct in question is private and consensual.
The Debate in Practice: R v Brown
The tension between the harm principle and legal moralism is not merely an abstract philosophical debate; it has had a profound impact on the development of English criminal law. Perhaps the most famous and controversial example is the House of Lords’ decision in R v Brown [1994] 1 AC 212. In this case, a group of men who had willingly engaged in sadomasochistic acts in private were convicted of assault occasioning actual bodily harm, contrary to sections 20 and 47 of the Offences Against the Person Act 1861. The defendants argued that their consent should provide a defence.
The majority in the House of Lords disagreed. Lord Templeman’s leading judgment was infused with a sense of moral repugnance, describing the activities as "a cult of violence" and concluding that it was not in the public interest that a person should be able to wound or cause actual bodily harm to others for "the gratification of a sadomasochistic libido". This reasoning appears to align closely with Devlin’s legal moralism. The court was not primarily concerned with harm to unwilling victims (as all participants were consenting adults), but with the perceived immorality and degradation of the acts themselves. By contrast, the dissenting judges, Lord Mustill and Lord Slynn, adopted a more liberal, Millian approach. Lord Mustill argued that in the absence of a good reason to the contrary, the law should not interfere with the private lives of citizens. He saw the case as a question of private morality, which should not be the business of the criminal law. The decision in Brown therefore suggests that legal moralism remains a powerful undercurrent in judicial reasoning, capable of overriding the principle of individual autonomy and consent.
A further justification for criminalisation that goes beyond the harm principle is paternalism. This is the idea that the law may intervene to protect individuals from harming themselves. Laws mandating the wearing of seatbelts or motorcycle helmets, or those criminalising the possession of certain drugs for personal use, are often justified on paternalistic grounds. Hart accepted a limited role for paternalism, distinguishing it from moralism (Hart, 1963). However, it remains a departure from the strict Millian harm principle, as it involves the state interfering with an individual’s choices about their own body and welfare.
Conclusion
The jurisprudence of criminalisation in England and Wales reveals a complex and often inconsistent landscape. The harm principle, as articulated by Mill and Hart, provides a powerful and appealingly simple foundation for a liberal legal system, rightly placing a high value on individual liberty and autonomy. It acts as a vital check on the power of the state and the potential tyranny of the majority. However, it is clear that it does not, by itself, explain the full scope of the modern criminal law. Lord Devlin’s argument that society has an interest in preserving a shared morality continues to resonate, as shown by the decision in R v Brown. Furthermore, paternalistic laws demonstrate a willingness to use criminal sanctions to protect people from themselves, not just from others.
While the harm principle should remain the primary guide, it appears that judges and legislators are sometimes willing to depart from it when faced with conduct they deem profoundly immoral or dangerously self-destructive. The danger of this approach, as Hart warned, is that it opens the door to the enforcement of prejudice and intolerance. Therefore, while the criminal law may not be able to detach itself completely from moral and paternalistic concerns, any such justification for criminalisation must be approached with extreme caution and subjected to rigorous scrutiny to ensure that the fundamental value of individual liberty is not unduly compromised.
References
- Devlin, P. (1965) The Enforcement of Morals. Oxford University Press.
- Hart, H.L.A. (1963) Law, Liberty and Morality. Oxford University Press.
- Mill, J.S. (1859) On Liberty. John W. Parker and Son.
- R v Brown [1994] 1 AC 212.
- Wolfenden Committee. (1957) Report of the Committee on Homosexual Offences and Prostitution (Cmnd. 247). HMSO.
