The Legal Enforcement of Morality
[JUAN YBORRA GOLPE]
“[T]he 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. His own good, either physical or moral, is not a sufficient warrant. …. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
John Stuart Mill, On Liberty (1859)
Utilising appropriate primary and secondary sources and making reference to relevant judicial decisions, critically comment in light of the quoted statement, on the extent to which society in England and Wales is entitled, through the agency of the legal system and particularly the Criminal Law, to prohibit certain types of human conduct and to punish offenders on the grounds that their behaviour is immoral.
This coursework requires us to carefully analyse the –in many cases, blurryboundaries that separate morality and law, as both concepts can often serve to establish the standards of behaviour for the members of a certain society. It will be discussed then, to what extend is morality due to be legally enforced by the law and where and how should these two elements be separated. The two main approaches about what the law should aim to (enforcing morality or preventing harm) shall also be discussed. We shall take “the disintegration theory” that Professor Hart used to refer to the theory in which morality is valued as the cement of society into observation as a case of study. We shall also discuss its weak and strong points so as to eventually try to reach the most objectively possible idea of
what should be Law’s attitude unto the accomplishment of the moral standards. Once this has been reached, we shall discuss some judicial cases and sentences that present interest for us due to a clash between morality, law enforcement and harm prevention.
Morality as an unifying bond
The disintegration thesis is strongly associated with a relativist conception of morality, Hart says. Then, according to this it could be said that due to this relativity, morality is prone to change from society to society. Thus, morality would act as a linking element amongst the members of that society and it is this unifying, cohesive power what really matters, not the “quality” of the morality itself. As Lord Devlin (one of the main defenders of the theory of disintegration) points out: “What is important is not the quality of the creed but the strength of the belief in it. The enemy of society is not error but indifference” (Devlin: 114) According to him, maintaining morality is necessary to prevent the disintegration of a society. But this leads to a question which is to what extent should law try to keep society apart from changes? What if these changes are natural? Lord Devlin’s arguments face several major flaws in this point, as he states that if society is not kept together through morality, bonds between its members will be weakened, leading to is destruction. “There is disintegration when no common morality is observed and history shows that the loosening of moral bonds if often the first stage of disintegration.” (Devlin: 168) By stating this argument Lord Devlin commits two big mistakes. The first one is that he gives a biased vision of history: It is true that something similar to what he defends happened to certain societies and peoples, but he does not choose –intentionally or not- to recall that the opposite thing happened in many other cases for example, in the societal shift from an old feudal society to a new one.
The second one, as Hart explains, is that these foresaid formulations are “[…]highly ambitious empirical generalisations about a necessary condition for the existence […] of a society…” (Hart: 3), and that “[…] no evidence is given in support of the argument” (Hart: 3). This lack of evidence is one of the biggest flaws in Lord Devlin’s arguments.
Law and private life
There is no doubt about the controversy around to which degree should Law interfere in the public lives of the members of a society. In 1958, the issue of the Wolfenden Report meant an important improvement in the proper division between crime and sin (in the case of homosexuality): “It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes which we have outlined .... [T]here must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.” Lord Devlin, who at first believed that these ideals were unquestionable, finally changed his opinion towards these ideals, believing that they were not only to be questioned, but wrong. In fact, he said that if a sin or a vice such as homosexuality is so execrable that its existence is an offence and this is the feeling the society we live in holds, “I do not see how society can be denied to eradicate it.” (Devlin: 17) This argument, despite being merely a hypothesis, as Dworkin points out: “This position was carefully stated as hypothetical, […] Devlin does not think than the condition is met”, provoked a storm of reactions and critics in all the different media, which “attacked the straw man”, by the means of the informal fallacy, presupposing that Lord Devlin had issued a homophobic argument. But his arguments, in spite of not being popular, cannot be disregarded “until we are satisfied that his arguments can be met” (Dworking: 987) Then, Lord Devlin goes further and compares the suppression of sexual immorality to the suppression of any subversive activity. It is at this point that Hart finds “grotesque” to compare the homosexual relationship of two adults
in private to treason or sedition. Devlin’s excuse to this way of thinking is that every man is an island and what someone does in private can end up affecting the rest of the society, as Dworkin deduces from Devlin’s works: “We are too sophisticated to suppose that the effects of an increase in homosexuality would be confined to those who participate in the practice alone.” (Dworkin: 992) But this, as it has been said before, needs to be empirically demonstrated to cause harm to society. Until then, we should respect the line between law and private life and let law act only take care of the support of private interest in: “Remaining free from: a) Undesired physical interference through crimes such as rape, assault, harassment; […] b) Offence through crimes such as incident exposure, indecency in public, solicitation; c) Undesired interference with property through crimes such as theft, robbery, deception […]” (Wilson:6)
How and when should be morality enforced through law? How?
Despite the number of critics towards Lord Devlin’s work, we can find something really interesting that can be of great help when it becomes necessary to choose which kind of approach is it necessary to take to enforce morality through law. He uses and defines the concept “man in the jury box”, as a synonym of the reasonable man, the right-minded man, or the archaism: “the man in the Clapham omnibus”. “It is the viewpoint of the man in the street.”(Devlin: 1971 p.38) This is how Lord Devlin thinks moral judgments should be ascertained by the law-maker, not by the opinion of the majority, it would be too difficult to reach the individual assent of all the citizens, but through a somewhat utopic concept, as he then says: “[…]the moral judgment of society must be something about which any twelve men or women drawn at
random might after discussion be expected to be unanimous.”(Devlin: 38) That is, the way of thinking about morality that is expected to be found in any right-minded man. Of course, anything considered to be immoral by the reasonable man should be seen as an immorality and it is potentially capable of damaging society. Devlin also says that if this damage goes beyond the limits of tolerance (tolerance is something essential for him), and leads to the intolerance, indignation and disgust of the society and goes beyond the way a right-minded man would behave, that immorality is to be punished. However, as Dworkin points out, this idea presents a flaw, insofar as Lord Devlin’s conclusions fail because he uses this moral judgment of the society in an anthropological sense: “Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalization (based on assumptions of fact so unsupported that they challenge the community’s own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion).”(Dworkin: 1000-1) It is then, that Dworkin gives a really good solution to the problem: using a legislator who refuses to take people’s indignation, disgust or intolerance into account, but who is aware of the general feeling of the people towards the immorality in question. Through this non-biased legislator’s sense, as Dworkin reminds us: “A conscientious legislator who is told a moral consensus exists must test the credentials of that consensus.” (Dworkin: 1001) is how Law should enforce morality.
The French theorist, E. Durkheim differences between the values that some people may hold , which give strength and continuity to a certain society, and the values that all the people must hold, which makes that certain society survive. Only the latter are to be enforced by law because, as he says, punishment “is the response of an outraged community to an infraction of a value it holds dear to its collective conscience” (Durkheim: 1984) Similar to Lord Devlin, he defends that legal punishment is only reserved for activities that pose a serious threat to the integrity of society.
The liberal point of view towards the enforcement of morality
The liberal point of view towards this topic is that society is only entitled to introduce the criminal punishment inasmuch as it points to prevent harm (or the risk of it) to the members of a society. Thus, as Wilson says: “The State should not intervene, therefore, simply to enforce morality unless perhaps the individual concerned […] was in need of paternalist protection.” (Wilson: 38). One of the main fears of the liberalists is then, that an irrational majority reaches the power to impose their views about the way of behaving.
Legislating to enforce morality or to prevent harm? Cases and sentences
It is time now to display some cases that present some interest due to their possibly different resolutions depending on the approaches they had followed during the trial. Thus, we shall be able to illustrate the differences between the two approaches. We have chosen to discuss two cases in which the individuals were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" In his book “Criminal Law: doctrine and theory”, Wilson provides us with the first and interesting case: Regina v. Brown. The question here was to decide whether a group of men was to be convicted for its involvement in certain (consensual) sadomasochistic acts. The defendants faced charges of assault occasioning actual bodily harm and unlawful wounding .The House of Lords decided (by a majority of 3 to 2) that the appellants were to be found guilty of the foresaid charges, in spite of whether the victims consented, and the fact that it was done in private. The majority of the Lordships took the view that, differently to homosexuality, sadomasochism should be punished for it involves inflicting pain and injuries. Thus, apart from being immoral, threatened the society as a collective as it could lead to cults of violence and the eventual abandonment of the moral standard that defends that hurting people is wrong, as one of the Lordships (Lord Templeman) explained during the trial “Society is entitled to protect
itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.” The minority thought that personal autonomy was above the value of harm prevention because society would suffer no harm if only the consenting subjects in particular were concerned. Regarding this decision Wilson explains “The criminal law should fulfil a minimalist role, that is, to intervene only if necessary to protect the interests of other members of the public, not simply to satisfy their moral preferences.” (Wilson: 39) The main difference between the two ideologies is that whereas the minority of the Lordships think that society can be harmed only by this consensual violence only if it has a direct public impact. The majority thought that moral damages can be committed as well as the direct damages the minority refers to. The only difference would be that the former takes more time to become apparent than the latter. Another similar case with almost exactly the same resolution is: Laskey, Jaggard and Brown v. The United Kingdom. The facts are as follow: During a routine police investigation, several video tapes of sadomasochistic sexual encounters were found. On the basis of their sadomasochistic actions, the men were convicted for assault occasioning actual bodily harm. In the previously mentioned R v Brown, the House of Lords upheld the judgment, establishing that consent was not a defense to those kinds of actions in these circumstances. The applicants believed that a violation of Article 8 (Privacy) of the European Convention of the Human Rights had occurred. However, The Court decided that the State unquestionably was entitled to regulate through criminal law the infliction of physical harm. The Court was not persuaded by the claims of the applicants, who defended that their behaviour belonged to the private. However, it was evident that the activities involved injury and wounding. As in the previous case, the State authorities were encouraged to consider not only the actual but also the potential harm which was inherent in these activities. After reading both sentences, it is clear then, the support of the House of Lords to the enforcement of morality approach, as Wilson defends in his
book: “ The House of Lords has now affirmed, by majority, the role of the criminal law in enforcing morality” (Wilson: 38). It is difficult to decide which approach is better, or even if there is one better than another. The blurry line dividing them cannot be easily traced and neither the more conservative approach, nor the liberal one can be disregarded.
It seems that morality and law will be bounded forever. The constant struggle among theorists about what should cover each of them or whether one should be used to enforce the other one is pretty much alive nowadays. Both approaches are completely respectable but, it might be interesting to struggle to find a common point, selecting the best parts of each one. The disintegration theory seems somewhat hypothetical and disenchanted in several of the points it defends but so does the liberalist approach. Controlling or not private life through the force of the law is also one of the hot spots in this kind of discussion. The disintegration theory stands for a stronger control of private life through morality, in opposition to the liberalist approach. And it is hard to say that one of them is right and the other one is wrong, for both of them may seem right depending on the way you choose to see society. Morality’s subjectivity is something inevitable. I daresay that the idea exposed by Lord Devlin, of ascertaining the moral judgments through the point of view of a “reasonable man”, are not that far away from utopia. It might present some flaws, as the liberalists complain. Of course it requires lots of empirical research, not only by jurists, but also anthropologists and sociologists. It is also true, as the liberalists point out, than many horrible actions have taken place in the name of that “shared morality” the conservatives defend. However, it should not be forgotten, that humankind is constantly evolving and so are its moral values. Many things are yet to be changed in order to reach a just and fair society but maybe we should be more positive as evolution is in most cases always for good.
Devlin, P. “The Enforcement of Morals “(Oxford University Press 1959). Reprinted in Devlin, “The Enforcement of Morals” (Oxford University Press 1965). Devlin, P. “Morals and the Criminal Law.” Richard A. Wasserstrom (ed.) Morality and the Law. Belmont: Wadsworth Publishing Co., 1971, pp. 24-48. Durkenheim, E. “ The Division of Labour in Society, London: Macmillan (1984). Dworkin, R. “Lord Devlin and the Enforcement of Morals.” The Yale Law Journal Company, Inc. Vol. 75, No.6 (May, 1966), pp. 986-1005 Hart, H. L. A. “Social Solidarity and the Enforcement of Morality.” The University of Chicago Law Review, Vol. 35. No. 1 (Autumn, 1967), pp. 113 Wilson, W. “Criminal Law: Doctrine and Theory (Longman Law Series).” Longman, 2nd Edition. 2003
Cases Laskey, Jaggard, and Brown v. U.K (1997), 24 Eur. H.R. Rep. 39 R. v. Brown (1993) 97 Cr.App.R. 44,  1 A.C. 212 Legislation European Convention of Human Rights Sexual Offences Act 1967 Sexual Offences Act 2003 OFFICIAL REPORTS The Report of the Committee on Homosexual Offences and Prostitution (cmnd 247) HMSO, 1958 - (Wolfenden Report)