One solution, typical of benign plural societies, is to have a multiplicity of legalsystems corresponding to the various segments within it. So Muslims follow Muslimconventions regarding marriage, inheritance, etc., and the legal system enforcesthese in that segment of the community; Hindus likewise follow their conventions;and so on. One may need ways of dealing with problems created at the interfacebetween communities, but there is nothing in principle to prevent one finding them.The more awkward case is where the ways of life are not only incompatible butmutually (or in one direction) condemnatory. These are typically ways of life withinwhat in some respects sees itself (or is seen by prominent segments within it) as onecommunity (cf. Mill's remark that while some of his audience might have no seriousobjection to Muslims [assumed to belong to a different racial group] practisingpolygamy they might feel very differently about some of their own embracingMormonism and doing likewise).As a wild but not I hope unfounded generalisation about the history of law, what wefind is that the morality in the broad sense (preached and/or practised) of someamong the dominant segments of a society has very often infused the law. With agrowing realisation of the contrast underlying Mackie's narrow/broad conceptions of morality, there is a tendency for the law to be liberalised in the direction of allowingpeople with divergent values to live and let live, rather than for some to be becondemned and legally sanctioned.
The legal enforcement of morality
This tendency, and the arguments surrounding it, can be clearly seen in the 1957Wolfenden Report in the UK (The Report of the Committee on Homosexual Offencesand Prostitution), and the debate on its approach between Lord Devlin (beginningwith a 1959 lecture, reprinted as chapter 1 of
The Enforcement of Morals
) andProfessor Hart (notably in the 1962 lectures published as
Law, Liberty, and Morality
).Devlin quotes the Report's account of the function of the criminal law: "to preservepublic 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 bodyor mind, inexperienced, or in a state of special physical, official or economicdependence" (para. 13, in Devlin, p. 2). It sees the importance of individual freedomof choice and action in matters of private morality as far outweighing any wish toequate crime with moral wickedness, so private morality should not be the law'sbusiness (a notion obviously close to the ideas of Mill we have already met).Devlin argues that a society requires a public morality: "what makes a society of anysort is community of ideas, not only of political ideas but also ideas about the way itsmembers should behave and govern their lives" (p. 9). One of his main examples ismarriage, where he says a society has to choose monogamy or polygamy and cannothave both. "The institution of marrriage would be gravely threatened if individual judgements were perrmitted about the morality of adultery; on those points theremust be public morality" (p. 10 — note, though, that he admits that adultery is not acrime and later agrees that it ought not to become one). A consequence, he says, isthat "society is justified in taking the same steps to preserve its moral code as itdoes to preserve its government and other essential institutions" (p. 13).