The Enforcement of Morality (or, Legal Moralism)

Many moral conservatives are concerned to preserve a particular way of life, others to
enforce a particular understanding of morality. Either view can underpin legal moralism,
the claim that conduct may be prohibited on the ground that it is inherently immoral even
though it causes neither harm nor offence to others. Other things being equal, it seems
plausible to want to prevent evil, and, according to the advocates of legal moralism, just
as plausible as wanting to prevent harm. The liberal’s response is that even though the
prevention of evil is in itself a reason to restrict individual, it is too slight a reason in the
end to warrant such restriction. The most famous defender of legal moralism has been
Patrick Devlin (who subsequently became the Lord Chief Justice in Great Britain) but
there have been others in both the UK and the US. Devlin flits between three
distinguishable claims: strict legal moralism, moral conservatism and a view about the
risks of public harm from certain conduct. I will reconstruct three arguments I think can
be found in his writings.

1. An Argument from Society’s Right to Protect Itself

1. Every society has the right to preserve its own existence and thus the right to
insist on some conformity with moral principles;
2. If society has such a right it is entitled to use the institutions and sanctions of its
criminal law to enforce the right;
3. Society’s right to punish immorality should not be exercised against every
occasion of immorality but only those where public feeling is high, enduring and
relentless, viz., when it rises to ‘intolerance, indignation and disgust’.
2. An Argument from Society’s Right to Follow Its Own Lights
1. If those who wish to engage in e.g. consenting adult homosexuality were
permitted freely to indulge themselves, our social environment would change
greatly;
2. Thus legislators must decide whether the existing social environment and the
institutions that preserve it should be protected against conduct that threatens
them. If the conduct that threatens them is conduct that no one is morally entitled
to engage in, the onus on those who seek protection of the existing way of life is
lessened;
3. A legislator in a democracy should, accordingly, determine which forms of
immorality should be outlawed by reference to the moral views of the society, that
is, by reference to which views can command majority support.
4. An Argument Based on How the Criminal Law Functions According to Devlin
(and here he follows James Fitzjames Stephen (father of Virginia Wolff) those
who think the criminal law is only legitimately about restricting harm and offence
ignore certain features of the law which show that these are not its only concern.
To give one illustration: the law allows consent as a defence only in relation to
charges of rape, false imprisonment and theft but no other crime scan similarly be
excused. Devlin and others suggest that this shows that the criminal law is not
based exclusively on liberal concerns, in particular that crimes must have
identifiable victims. If Devlin were right there could not be (as he thinks there
are) prohibitions on victimless crimes. These he thinks are best explained by legal
moralism.