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Law and morality — homosexuality; recreational drugs; gambling

Reading: Mackie, ch. 10 section 2

In this and the following lecture we shall be looking at some of the connections
between law and morality. There are a lot of questions here that we shall not be
looking at, perhaps the most fundamental of which is one of the central issues in
political philosophy: is there a moral obligation to obey the law?

Obligations

That question does, however, permit us to notice explicitly the fact that there are a
variety of obligations. We may be obliged by the rules of a game or a professional
association; we may be obliged by the law and the state's enforcement machinery;
we may be obliged morally. One of the questions in applied ethics concerns the
extent to which the law should be lending its support to morality. I think this is an
issue in which Mackie's conception of morality in the narrow sense, contrasted with a
broader sense, can play a useful role.

We can see this from his own claim that "great parts of what both the criminal and
the civil law enforce, at all times and in all states, are also requirements of morality
[in the narrow sense] — not killing or assaulting other people, honesty, respect for
property and other rights, the keeping of agreements, and contributing in various
ways to a community's organized joint purposes" (p. 234). In these areas we have,
and need for a stable society, first the mechanisms of morality (principles, rules,
feelings and dispositions), second "the formulation and authoritative statement of
laws", and third the routine enforcement of those laws; and we need these to be in
reasonable harmony with each other.

The law and morality in the broad sense

It is when we move from this comparatively uncontentious central core to issues that
belong only to morality in the broader sense that serious problems arise. We can
postulate contexts in which this extension is itself unproblematic: a society in which
there is consensus on broader issues and in which there is virtually no hypocrisy. I
leave it to others to indicate whether any such contexts can be found in human
history. What we certainly do find, and the context in which we certainly are living,
is rather different in these two ways that Mackie picks out: there are different,
incompatible preferred ways of life, and "there is often a discrepancy between the
morality to which people pay lip service and that which they seriously prescribe to
themselves" (p. 234).

On the first issue, of incompatible preferred ways of life, it might be pertinent, and
relevant to the regional scene, to make a distinction Mackie overlooks between the
conditions of a benign "plural" society and those of a society where groups not only
adopt incompatible codes of conduct but also think each other seriously deficient
because of this. (This may well be the condition of an explosive plural society —
many cultures have traditionally been hostile to outsiders. It is also noteworthy that
in many cases the moral hostility is overwhelmingly one-way: many people detest a
homosexual way of life, but homosexuals need not condemn heterosexuality for
others; prostitutes do not need to think that sex within marriage is wicked.)
One solution, typical of benign plural societies, is to have a multiplicity of legal
systems corresponding to the various segments within it. So Muslims follow Muslim
conventions regarding marriage, inheritance, etc., and the legal system enforces
these 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 interface
between 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 but
mutually (or in one direction) condemnatory. These are typically ways of life within
what in some respects sees itself (or is seen by prominent segments within it) as one
community (cf. Mill's remark that while some of his audience might have no serious
objection to Muslims [assumed to belong to a different racial group] practising
polygamy they might feel very differently about some of their own embracing
Mormonism and doing likewise).

As a wild but not I hope unfounded generalisation about the history of law, what we
find is that the morality in the broad sense (preached and/or practised) of some
among the dominant segments of a society has very often infused the law. With a
growing 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 allowing
people with divergent values to live and let live, rather than for some to be be
condemned and legally sanctioned.

The legal enforcement of morality

This tendency, and the arguments surrounding it, can be clearly seen in the 1957
Wolfenden Report in the UK (The Report of the Committee on Homosexual Offences
and Prostitution), and the debate on its approach between Lord Devlin (beginning
with a 1959 lecture, reprinted as chapter 1 of The Enforcement of Morals) and
Professor 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 preserve
public 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 body
or mind, inexperienced, or in a state of special physical, official or economic
dependence" (para. 13, in Devlin, p. 2). It sees the importance of individual freedom
of choice and action in matters of private morality as far outweighing any wish to
equate crime with moral wickedness, so private morality should not be the law's
business (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 any
sort is community of ideas, not only of political ideas but also ideas about the way its
members should behave and govern their lives" (p. 9). One of his main examples is
marriage, where he says a society has to choose monogamy or polygamy and cannot
have both. "The institution of marrriage would be gravely threatened if individual
judgements were perrmitted about the morality of adultery; on those points there
must be public morality" (p. 10 — note, though, that he admits that adultery is not a
crime and later agrees that it ought not to become one). A consequence, he says, is
that "society is justified in taking the same steps to preserve its moral code as it
does to preserve its government and other essential institutions" (p. 13).
Devlin goes on to accuse the Report of inconsistency in its acceptance on the one
hand that certain things are wrong and yet on the other that the law should refrain
from direct action, except in cases of corrupting the young or exploitation. One
instance concerns the Report's endorsement of laws against ponces although the
Report itself admits that typically they no more exploit prostitutes than any other
agent exploits his clients. "If the exploitation of human weakness is considered to
create a special circumstance there is virtually no field of morality which can be
defined in such a way as to exclude the law" (p. 12). Devlin gives other instances of
the law, and not merely Wolfenden's recommendations, becoming distorted by trying
to serve purposes for which it is not intended — the severe punishment then given to
abortionists because illegal abortions were dangerous, and dangerous because they
were illegal (p. 24).

Hart responded to Devlin by accusing him of confusing the true claim that a society
has some moral beliefs in common with the false one that a society is strictly
identical with its entire morality at a point of time, so that any change in morality
destroys it. Devlin reasonably replies (footnote, p. 13) that he did not suggest that
there could be no change, merely that some matters went deep enough to constitute
the lines of the tolerable for a group of people. He admitted, even, that the limits of
the tolerable itself do change (p. 18). I think that the Mackie contrast may indicate a
way to distinguish the relative importance of different elements in a society's moral
cosmos; what one wants to say to Devlin is that the degree of outrage felt for
homosexuality is disproportionate to its role in a social formation — it is evident we
can live and let live here. Again, he overemphasises the importance of consensus on
one particular form of marriage in a society: plural societies manage with several,
and several societies are arguably moving towards what one might call the
disestablishment of marriage altogether (for my remarks on the desirability of such a
move, see a conference paper with that title). My own view, with benefit of forty
years' hindsight, is that Devlin was overhasty in identifying the strength of popular
support for elements of his supposed public morality and blind to the possibility that
gay men, for instance, would wish to endorse their own way of life, and that things
can go on quite nicely when they do so. (Of course, controversy continues, and
inconsistencies abound.)

Note that the argument cannot be simply "a group of people can survive and flourish with a certain number of
them doing X, so there need be no law against X" since that is true if X is murder, rape, theft, etc. It is, rather,
"once everyone's fundamental rights to progressively choose how to live have been assured by laws
corresponding to the core of morality, some can pursue X, others Y, and there need be no law restricting their
freedoms here."

Functionalism and the conditions for the continuing identity of a society

Before moving on, it may be worth while to notice a general difficulty in identifying
enduring institutions such as societies. We can make the point by contrasting the
reality of social life with a popular picture, summed up elegantly in Shakespeare's
Coriolanus by the Senator, Menenius:

There was a time when all the body's members


Rebell'd against the belly, thus accused it:
That only like a gulf it did remain
I' the midst o' the body, idle and unactive,
Still cupboarding the viand, never bearing
Like labour with the rest, where the other instruments
Did see and hear, devise, instruct, walk, feel,
And, mutually participate, did minister
Unto the appetite and affection common
Of the whole body. The belly answer'd--

'True is it, my incorporate friends,' quoth he,


'That I receive the general food at first,
Which you do live upon; and fit it is,
Because I am the store-house and the shop
Of the whole body: but, if you do remember,
I send it through the rivers of your blood,
Even to the court, the heart, to the seat o' the brain;
And, through the cranks and offices of man,
The strongest nerves and small inferior veins
From me receive that natural competency
Whereby they live: and though that all at once,
....
Though all at once cannot
See what I do deliver out to each,
Yet I can make my audit up, that all
From me do back receive the flour of all,
And leave me but the bran.' What say you to't?

First Citizen

It was an answer: how apply you this?

MENENIUS

The senators of Rome are this good belly,


And you the mutinous members; for examine
Their counsels and their cares, digest things rightly
Touching the weal o' the common, you shall find
No public benefit which you receive
But it proceeds or comes from them to you
And no way from yourselves.

While this analogy has been a mainstay of much sociological theorising, an important
point is that societies are not unified in the way almost all animals are. There is
really no problem in telling whether we have the same cat or dog as we had
yesterday, nor — leaving aside the philosophical perplexities of personal identity we
briefly touched on last week — is there with individual people. Similar things can be
said about the flourishing, development, or deterioration of these things. But when
we have groups of people in interaction, there is nothing analogous to the entire
animal vis-à-vis its organs. We have to decide whether Russian society survived the
Revolution, and we have to decide any evaluations about things getting better or
worse we may want to make, by reference to other things, not by consulting
"Russia". We have, in Mackie's contrast between the concerns of morality in the
narrow sense and those of a broader morality, an indication of the extreme case of
breakdown: when social life becomes a war of all against all. But that thankfully is
very rare; the changes we actually find may invert the power relationships of
definable groups or reveal radically different ways of life being practised — whether
these differences are enough for one society to have ended and another to have
begun is a matter for judgment, and will be relative to our particular interests in a
particular context.

Paternalism

Part of Devlin's case for the law to enforce positive morality was an appeal to certain
features of contemporary English law that he said could only be explained on that
basis. Hart responded to this by suggesting that much of what we find can be
explained, not by an attempt to enforce morality, but simply by paternalism: the
attempt to protect people from themselves. So, while Devlin claimed that the fact
that consent of the victim is not usually allowed as an excuse against criminal
prosecution showed that the law was attempting to uphold certain standards of
behaviour, Hart suggests that the law here might merely be trying to protect people
from themselves.

Hart stresses the extent of such paternalism (unwelcome to one of Mill's persuasion
that people ought not to be interfered with in such a way — in a later comment,
Devlin criticises Hart for suggesting he is still within a Millian perspective when he
has dumped a crucial part of Mill's position). Hart makes the point that the law that
makes selling certain drugs without a prescription a criminal offence is clearly not
aimed at the fault of the seller so much as at protecting possible buyers (Hart, p.
32). He suggests that Mill's opposition to these developments stems from an
excessively narrow conception of what a typical member of the public is like: "Mill
endows him with too much of the psychology of a middle-aged man whose desires
are relatively fixed, nor liable to be artificially stimulated by external influences; who
knows what he wants and what gives him satisfaction or happiness; and who
pursues these things when he can" (p. 33).

Another example our two authors briefly touch on concerns cruelty to animals.
Devlin (p. 17) suggests we are legislating against the cruelty of torturers; Hart (p.
34) that we are concerned with the suffering of the animals.

Hart has a third approach to some cases: the law is not to be seen as enforcing a
particular morality but rather as protecting the public from offences to public
decency. Conjugal sex is not illegal, but in a public place it is (p. 45). So, he
suggests, we should see laws against bigamy (in a context where there is no law to
stop people doing everything else a bigamously married trio might do) as addressed
to the feelings of outrage of those who cleave to traditional monogamy.

It seems to me that these alternative accounts may do something to undermine


Devlin's case, but a point remains that Hart cannot escape. Harm and offence are
seriously indeterminate notions. On one side there are indubitable cases — one
could package cyanide in a colourful wrapper and sell it to children as a sweet; it
would do undeniable harm to any child who ate it. We could probably agree upon
equally straightforward cases of outrage and offence to a mutually supported public
decency. But, as Hart is prepared to agree as far as offence goes at least (cf. p. 47),
it soon becomes a nice question whether we are faced with "genuine" harm or
offence, of a kind that the law should be taking into account. As we reach this area,
the grounds for thinking something harmful or offensive shift away from
straightforward factual connections with pain, suffering or death towards something
more purely evaluative. So if we have laws in these areas, they are enforcing
someone's contentious view of what a person's good consists in; they may not have
to be viewed as punishing moral wickedness, but in as much as they penalise certain
forms of behaviour it is easy to think that they do so, particularly if one does not
agree about the harm in question.

In his later comment on Hart (ch. 7 of The Enforcement of Morals), Devlin makes much the same objection to
Hart's invocation of paternalism. He contrasts "physical" or bodily harm and "moral" harm, and asks whether
Hart is restricting himself to the former. He suggests that this cannot be the correct interpretation of the
paternalism, if such it be, involved in, say, forbidding euthanasia or not letting consent nullify assault for a
masochist, and goes on to make my point that we cannot easily tell when the physical ends and the moral
begins.

It is not surprising then that many people have come to think that consuming or
possessing various substances is wicked because they have been banned, possibly
with an eye originally to paternalistic avoidance of self-harm, although the actual
harm may be difficult to discern. Hart, according to Devlin, is in danger of seeking
greater rationality in the actual law at any one time than the conflicting pressures of
broadly liberal politics, paternalistic concerns, entrenched interest groups,
entrenched but pretty arbitrary ways of thinking, and temporary moral panics permit.
It seems to me that this can be amply documented from the incoherence of present
legislation in many jurisdictions on recreational drugs vis-à-vis tobacco and alcohol
or of local legislation on gambling.

A case you may want to consider in this general area is that of performance-
enhancing drugs. These are banned by sporting bodies, even if not usually by law-
making bodies. One consideration is, again, paternalistic: many of these substances
have nasty side-effects, so athletes are being protected from premature debilitation
by being prevented from consuming substances that might give them a temporary
advantage. Another thought is that using these substances is some sort of cheating
— it is of course breaking the rules laid down by various sporting authorities, but the
point here is that it is also a morally repugnant way of gaining an advantage. But it
is difficult to see how to sustain a distinction between acceptable substances (the
beef-steaks boxers used to eat) and unacceptable ones. As Chadwick has recently
noted, the boundary between drugs and food is being erased by various nutrients,
and in any case it was always more a functional issue rather than something intrinsic
to particular substances (Ruth Chadwick, 'Novel, Natural, Nutritious: Towards a
Philosophy of Food,' Proceedings of the Aristotelian Society, vol. 100, pp. 193-208
(2000).)

Ed Brandon

Last revised 3 November.

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