LAW, LIBERTY, and MORALITY

THE HARRY CAMP LECTURES

AT STANFORD UNIVERSITY
1962
LAW, LIBERTY
AND

MORALITY

H. L.A. Hart

STANFORD UNIVERSITY PRESS

STANFORD, CALIFORNIA
 Stanford University Press
Stanford, California
© 1963 by the Board of Trustees of the
Leland Stanford Junior University
Printed in the United States of America
Cloth ISBN 0-8047-0153-9
Paper ISBN 0-8047-0154-7
Original printing 1963
THE HARRY CAMP LECTURES

The Harry Camp Memorial Fund

was established in 1959 to make pos-
sible a continuing series of lectures at
Stanford University on topics bear-
ing on the dignity and worth of the
human individual.
 CONTENTS

I
The Legal Enforcement of Morality, I
Conspiracy to Corrupt Public Morals, 6
Prostitution and Homosexuality, 13
Positive and Critical Morality, 17

II
The Use and Abuse of Examples, 25
Paternalism and the Enforcement of Morality, 30
The Moral Gradation of Punishment, 34
Private Immorality and Public Indecency, 38
The Moderate and the Extreme Thesis, 48

III
Varieties of Enforcement, 53
Retribution and Denunciation, 6o
The Preservation of Morality and Moral Conservatism, 69
Moral Populism and Democracy, 77
Conclusion, 81

Selected Bibliography, 85
Index,87
 I

THE LEGAL ENFORCEMENT OF MORALITY

These lectures are concerned with one question about the

relations between law and morals. I say, advisedly, "one
question," because in the heat of the controversy often gen-
erated when law and morals are mentioned in conjunction,
it is often overlooked that there is not just one question
concerning their relations ·but many different questions
needing quite separate consideration. So I shall start by
distinguishing four such questions and identifying the one
with which I shall be here concerned.
The first is a historical and a causal question: Has the
development of the law been influenced by morals? The
answer to this question plainly is "Yes"; though of course
this.does not mean that an affirmative answer may not also
be given to the converse question: Has the development
of morality been influenced by law ? This latter question
has scarcely been adequately investigated yet, but there are
now many admirable American and English studies of the
former question. These exhibit the manifold ways in which
morality has determined the course of the law, sometimes
covertly and slowly through the judicial process, some-
times openly and abruptly through legislation. I shall say
no more here about this historical causal question, except
to utter the warning that the affirmative answer which may
be given to it, and to its converse, does not mean that an
affirmative answer is to be given to other quite different
questions about the relations of law and morals.
The second question may be called an analytical or defi-
nitional one. Must some reference to morality enter into
an adequate definition of law or legal system? Or is it just
a contingent fact that law and morals often overlap (as in
their common proscription of certain forms of violence and
dishonesty) and that they share a common vocabulary of
rights, obligations, and duties? These are famous ques-
tions in the long history of the philosophy of law, but per-
haps they are not so important as the amount of time and
ink expended upon them suggests. Two things have con-
spired to make discussion of them interminable or seem-
ingly so. The first is that the issue has been clouded by
use of grand but vague words like "Positivism" and "Natu-
ral Law." Banners have been waved and parties formed in
a loud but often confused debate. Secondly, amid the
shouting, too little has been said about the criteria for judg-
ing the adequacy of a definition of law. Should such a defi-
nition state what, if anything, the plain man intends to con-

2
vey when he uses the expressions "law" or "legal system"?
Or should it rather aim to provide, by marking off certain
social phenomena from others, a classification useful or
illuminating for theoretical purposes?
A third question concerns the possibility and the forms
of the moral criticism of law. Is law open to moral criti-
cism? Or does the admission that a rule is a valid legal
rule preclude moral criticism or condemnation of it by ref-
erence to moral standards or principles? Few perhaps of
this audience would find any contradiction or paradox in
the assertion that a rule of law was valid and yet conflicted
with some binding moral principle requiring behaviour
contrary to that demanded by the legal rule. Yet in our
own day Kelsen 1 has argued that there is a logical contra-
diction in such an assertion, unless it is interpreted merely
as an autobiographical statement or psychological report
by the speaker of his divergent inclinations both to obey
the law and to disobey it by following the moral principle.
Within this third question there are many subordinate
ones. Even if we admit, as most would, the possibility of
a moral criticism of law, we may ask whether there are
any forms of moral criticism which are uniquely or ex-
clusively relevant to law. Does criticism in terms of Justice
exhaust all the relevant forms? Or does "good law" mean
something different from and wider than "just law"? Is
1 Hans Kelsen, General Theory of Law and State, pp. 374-76,

407-10.

3
Justice, as Bentham seems to have thought, merely a name
for the efficient distribution of Utility or Welfare, or is it
otherwise reducible to them? Plainly the adequacy of Util-
itarianism as a moral critique of social institutions is in
issue here.
The fourth question is the subject of these lectures. It
concerns the legal enforcement of morality and has been
formulated in many different ways: Is the fact that cer-
tain conduct is by common standards immoral sufficient
to justify making that conduct punishable by law? Is it
morally permissible to enforce morality as such? Ought
immorality as such to be a crime?
To this question John Stuart Mill gave an emphatic
negative answer in his essay On Liberty one hundred years
ago, and the famous sentence in which he frames this an-
swer expresses the central doctrine of his essay. He said,
"The only purpose for which power can rightfully be ex-
ercised over any member of a civilised community against
his will is to prevent harm to others." 2 And to identify the
many different things which he intended to exclude, he
added, "His own good either physical or moral is not a
sufficient warrant. He cannot rightfully be compelled to
do or forbear because it will be better for him to do so,
because it will make him happier, because in the opinions
of others, to do so would be wise or even right." 3
This doctrine, Mill tells us, is to apply to human beings
2 On Liberty, Chapter 1. 3 /bid.

4
only "in the maturity of their faculties": it is not to apply
to children or to backward societies. Even so, it has been
the object of much academic criticism on two different,
and indeed inconsistent, grounds. Some critics have urged
that the line which Mill attempts to draw between actions
with which the law may interfere and those with which
it may not is illusory. "No man is an island"; and in an
organised society it is impossible to identify classes of ac-
tions which harm no one or no one but the individual who
does them. Other critics have admitted that such a divi-
sion of actions may be made, but insist that it is merely
dogmatic on Mill's part to limit legal coercion to the class
of actions which harm others. There are good reasons, so
these critics claim, for compelling conformity to social mo-
rality and for punishing deviations from it even when these
do not harm others.
I shall consider this dispute mainly in relation to the
special topic of sexual morality where it seems prima facie
plausible that there are actions immoral by accepted stand-
ards and yet not harmful to others. But to prevent mis-
understanding I wish to enter a caveat; I do not propose
to defend all that :Mill said; for I myself think there may
be grounds justifying the legal coercion of the individual
other than the prevention of harm to others. But on the
narrower issue relevant to the enforcement of morality
Mill seems to me to be right. It is of course possible simply
to assert that the legal enforcement by society of its ac-

5
cepted morality needs no argument to justify it, because it
is a morality which is enforced. But Mill's critics have not
fallen back upon this brute assertion. They have in fact ad-
vanced many different arguments to justify the enforce-
ment of morality, but these all, as I shall attempt to show,
rest on unwarranted assumptions as to matters of fact, or
on certain evaluations whose plausibility, due in large
measure to ambiguity or vagueness or inaccuracy of state-
ment, dwindles (even if it does not altogether vanish)
when exposed to critical scrutiny.

CONSPIRACY TO CORRUPT PUBLIC MORALS

In England in the last few years the question whether

the criminal law should be used to punish immorality "as
such" has acquired a new practical importance; for there
has, I think, been a revival there of what might be termed
legal moralism. Judges both in their judicial capacity and
in extra-judicial statements have gone out of their way to
express the view that the enforcement of sexual morality
is a proper part of the law's business-as much its business,
so one judge has argued, as the suppression of treason. It
is not clear what has provoked this resurgence of legal mor-
alism: there must have been many factors at work, and
among them, perhaps, has been the idea that a general stif-
fening of the sanctions attached to any form of immorality
may be one way to meet the general increase in crime by

6
cepted morality needs no argument to justify it, because it
is a morality which is enforced. But Mill's critics have not
fallen back upon this brute assertion. They have in fact ad-
vanced many different arguments to justify the enforce-
ment of morality, but these all, as I shall attempt to show,
rest on unwarranted assumptions as to matters of fact, or
on certain evaluations whose plausibility, due in large
measure to ambiguity or vagueness or inaccuracy of state-
ment, dwindles (even if it does not altogether vanish)
when exposed to critical scrutiny.

CONSPIRACY TO CORRUPT PUBLIC MORALS

In England in the last few years the question whether

the criminal law should be used to punish immorality "as
such" has acquired a new practical importance; for there
has, I think, been a revival there of what might be termed
legal moralism. Judges both in their judicial capacity and
in extra-judicial statements have gone out of their way to
express the view that the enforcement of sexual morality
is a proper part of the law's business-as much its business,
so one judge has argued, as the suppression of treason. It
is not clear what has provoked this resurgence of legal mor-
alism: there must have been many factors at work, and
among them, perhaps, has been the idea that a general stif-
fening of the sanctions attached to any form of immorality
may be one way to meet the general increase in crime by

6
which we are all vastly disturbed. But whatever its cause,
this movement of judicial opinion has gone far. Last year
the House of Lords in the case of Shaw v. Director of
Public Prosecutionl conjured up, from what many had
thought was its grave the eighteenth century, the concep-
tion (itself a creature of the Star Chamber) that "a con-
spiracy to corrupt public morals" is a common law offence.
As a result of this decision the prosecuting authorities in
England can now face their complex problems equipped
with Lord Mansfield's dictum of 1774 which some of the
judges in Shaw's case invoked in their speeches.
Whatever is contra bonos mores et decorum the prin-
ciples of our laws prohibit and the King's Court as the
general censor and guardian of the public morals is
bound to restrain and punish.5
Of course the penal code of California, like that of many
states of the Union, includes in its calendar of crimes a con-
spiracy to injure public morals, and it may seem strange to
Americans to hear the recognition of this offence by the
English House of Lords represented as a new development.
But Americans are accustomed, as the English are not, to
the inclusion among their statutes of much legal lumber in
the form of penal provisions no longer enforced, and I am
assured that, in California at least, the provision making
a conspiracy to corrupt public morals a crime may safely
4 (r96r) 2 A.E.R. 446. (r962) A.C. 223.
''Jones v. Randall ( r774). Lofft. at p. 385.

7
be regarded as a dead letter. This is now not so with the
English, and both the use actually made of the law in
Shaw's case and the future use envisaged for it by the
House of Lords are worth consideration.
The facts in Shaw's case are not such as to excite sym-
pathy for the accused. What Shaw had done was to com-
pose and procure the publication of a magazine called the
Ladies Directory giving the names and addresses of pros-
titutes, in some cases nude photographs, and an indication
in code of their practices. For this Shaw was charged and
found guilty of three offences: ( 1) publishing an obscene
article, (2) living on the earnings of the prostitutes who
paid for the insertion of their advertisements in the Ladies
Directory, (3) conspiring to corrupt public morals by
means of the Ladies Directory.
All this may seem a somewhat ponderous three-handed
engine to use merely to ensure the conviction and impris-
onment of Shaw; but English law has always preferred the
policy of thorough. The judges in the House of Lords
not only raised no objection to the inclusion of the charge
of conspiracy to corrupt public morals, but with one dis-
sentient (Lord Reid) they confirmed the prosecution's con-
tention that this was an offence still known to English law
and insisted that it was a salutary thing that this should be
so. They made indeed an excursion, rare for English
judges, into the area of policy in order to emphasise this.
To show the contemporary need for the newly resusci-

8
tated penal law one of the judges (Lord Simonds), a
former Lord Chancellor, made the following remarkable
statement:
When Lord Mansfield speaking long after the Star
Chamber had been abolished said that the Court of
King's Bench was the custos morum of the people and
had the superintendency of offences contra bonos mores,
he was asserting, as I now assert, that there is in that
Court a residual power, where no statute has yet inter-
vened to supersede the common law, to superintend
those offences which are prejudicial to the public wel-
fare. Such occasions will be rare, for Parliament has
not been slow to legislate when attention has been suffi-
ciently aroused. But gaps remain and will always re-
main, since no one can foresee every way in which the
wickedness of man may disrupt the order of society.
Let me take a single instance ... Let it be supposed
that at some future, perhaps early, date homosexual
practices between adult consenting males are no longer
a crime. Would it not be an offence if even without
obscenity such practices were publicly advocated and
encouraged by pamphlet and advertisement? Or must
we wait till Parliament finds time to deal with such
conduct? I say, my Lords, that if the common law is
powerless in such an event then we should no longer
do her reverence. But I say that her hand is still pow-
erful and that it is for her Majesty's Judges to play the
part which Lord Mansfield pointed out to them. 6
"Shaw v. Director of Public Prosecutions ( 1961) 2 A.E.R. at
pp. 452-53. ( 1962) A.C. at p. 268.

9
This is no doubt a fine specimen of English judicial rhet-
oric in the baroque manner. Later judges may dismiss
much of it as obiter dictum. But the interpretation given
by the House of Lords to the exceedingly vague and indeed
obscure idea of corrupting public morals has fashioned a
very formidable weapon for punishing immorality as such.
For it is clear from the form of direction to the jury which
the House of Lords approved in this case that no limits are
in practice imposed by the need to establish anything which
would be ordinarily thought of as a "conspiracy" or as "cor-
ruption." These strong words have, as Lord Reid said, been
"watered down," and all that has to be established is that
the accused agreed to do or say something which in the
opinion of a jury might "lead another morally astray." 7
There need moreover be no approach to the "public" nor
need the morality in question be "public" in any sense other
than being the generally accepted morality.
Legal writers in England have not yet worked out the
relation between this vastly comprehensive common law
offence and those statutes which define certain specific of-
fences concerned with sexual morality. But it is certainly
arguable that the prosecuting authorities may now avail
themselves of this common law offence to avoid the restric-
tions imposed by statute or statutory defences. Thus the
statute 8 under which the publishers of D. H. Lawrence's

' ( r96r) 2 A.E.R. at pp. 461, 466. ( r 962) A.C. at p. 282.

'The Obscene Publications Act 1959.

IO
Lady Chatterley's Lover were unsuccessfully prosecuted
in England last year provides that the interests of sci-
ence, literature, and art or learning shall be taken into
consideration, and if it is proved that on these grounds pub-
lication is justified as being for the public good, no offence
under the statute is committed. Evidence as to these merits
was accordingly received in that case. Had the publishers
been charged with conspiring 'to corrupt public morals, the
literary or artistic merits of the book would have been irrel-
evant, and the prosecution might very well have succeeded.
In the same way, though Parliament in recent legislation
has refrained from making prostitution itself a crime, as
distinct from soliciting in a street or public place,9 it seems
that it is open to the Courts under the doctrine of Shaw's
case to do what Parliament has not done. Some apprehen-
sion that it may be so used has already been expressed. 10
The importance attached by the judges in Shaw's case
to the revival of the idea that the Courts should function
as the custos morum or "the general censor and guardian
of the public manners" may be gauged from two things.
The first is that this revival was plainly a deliberate act of
policy; for the antique cases relied upon as precedents
plainly permitted, even under the rigorous English doc-

9The Street Offences Act 1959.

10Manchester Guardian, January 31, 1962; comment on Weisz
Y. Monahan (1962) 2 W.L.R. 262. Cf. also R. v. Quinn (1961) 3
W.L.R. 611.

II
trine of precedent, a decision either way. Secondly, the
judges seemed willing to pay a high price in terms of the
sacrifice of other values for the establishment-or re-estab-
lishment-of the Courts as custos morum. The particular
value which they sacrificed is the principle of legality which
requires criminal offences to be as precisely defined as pos-
sible, so that it can be known with reasonable certainty be-
forehand what acts are criminal and what are not. As a
result of Shaw's case, virtually any cooperative conduct is
criminal if a jury consider it ex post facto to have been
immoral. Perhaps the nearest counterpart to this in mod-
ern European jurisprudence is the idea to be found in Ger-
man statutes of the Nazi period that anything is punish-
able if it is deserving of punishment according "to the
fundamental conceptions of a penal law and sound popular
feeling." 11 So while Mill would have shuddered at the law
laid down in Shaw's case as authorising gross invasions of
individual liberty, Bentham12 would have been horrified at
its disregard of the legal values of certainty and its exten-
sion of what he termed "ex post facto law." 13

11 Act of June 28, I935·

12 Principles of the Civil Code, Part I, Chapter 17 (I [Bowring
ed.] Works 326).
13 Shaw's case has been criticised on these grounds by Glanville

Williams, "Conspiring to Corrupt," The Listener, August 24, 1961,

p. 275; Hall Williams, 24 Mod. L.R. 631 (1961): "judicial folly";
D. Seaborne Davies, "The House of Lords and the Criminal Law,"
J. Soc. Public Teachers of Law (xg6x), p. 105: "an egregious per-

12
 PROSTITUTION AND HOMOSEXUALITY

There are other points of interest in Shaw's case. What

after all is it to corrupt morals or a morality? But I shall de-
fer further consideration of this point in order to outline
another issue which in England has recently provoked dis-
cussion of the law's enforcement of morality and has stimu-
lated efforts to clarify the principles at stake.
Much dissatisfaction has for long been felt in England
with the criminal law relating to both prostitution and
homosexuality, and in 1954 the committee well known as
the Wolfenden Committee was appointed to consider the
state of the law. This committee reported 14 in September
1957 and recommended certain changes in the law on both
topics. As to homosexuality they recommended by a ma-
jority of 12 to 1 that homosexual practices between con-
senting adults in private should no longer be a crime; as
to prostitution they unanimous! y recommended that,
though it should not itself be made illegal, legislation
should be passed "to drive it off the streets" on the ground
that public soliciting was an offensive nuisance to ordinary
citizens. The government eventually introduced legisla-

formance." It was welcomed as "an important contribution to the

development of the criminal law" by A. L. Goodhart, 77 Law. Q.R.
567 (1 961).
14 Report of the Committee on Homosexual Offences and Pros-

titution (CMD 247) 1957.

tion 15 to give effect to the Committee's recommendations
concerning prostitution but not to that concerning homo~
sexuality, and attempts by private members to introduce
legislation modifyin,g the law on this subject have so far
failed.
What concerns us here is less the fate of the Wolfenden
Committee's recommendations than the principles by
which these were supported. These are strikingly similar
to those expounded by Mill in his essay On Liberty. Thus
section 13 of the Committee's Report reads:
[The] function [of the criminal law], as we see it, is to
preserve public order and decency, to protect the citizen
from what is offensive or injurious and to provide suf~
ficient safeguards against exploitation or corruption of
others, particularly those who are specially vulnerable
because they are young, weak in body or mind or in~
experienced. . ..
This conception of the positive functions of the criminal
law was the Committee's main ground for its recommen~
dation concerning prostitution that legislation should be
passed to suppress the offensive public manifestations of
prostitution, but not to make prostitution itself illegal. Its
recommendation that the law against homosexual prac~
tices between consenting adults in private should be relaxed
was based on the principle stated simply in section 61 of the
Report as follows: "There must remain a realm of private
15 The Street Offences Act 1959·
morality and immorality which is, in brief and crude
terms, not the law's business."
It is of some interest that these developments in England
have had near counterparts in America. In 1955 the Amer-
ican Law Institute published with its draft Model Penal
Code a recommendation that all consensual relations be-
tween adults in private should be excluded from the scope
of the criminal law. Its grounds were (inter alia) that "no
harm to the secular interests of the community is involved
in atypical sex practice in private between consenting adult
partners" ;16 and "there is the fundamental question of the
protection to which every individual is entitled against state
interference in his personal affairs when he is not hurting
others."" This recommendation had been approved by
the Advisory Committee of the Institute but rejected by a
majority vote of its Council. The issue was'therefore re-
ferred to the annual meeting of the Institute at Washing-
ton in May 1955, and the recommendation, supported by
an eloquent speech of the late Justice Learned Hand, was,
after a hot debate, accepted by a majority of 35 to 24. 18
It is perhaps clear from the foregoing that Mill's prin-
ciples are still very much alive in the criticism of law, what-

16 American Law Institute Model Penal Code, Tentative Draft

No.4, p. 277.
17 Ibid., p. 278.
18 An account of the debate is given in Time, May 30, 1955, p.
13·
ever their theoretical deficiencies may be. But twice in one
hundred years they have been challenged by two masters
of the Common Law. The first of these was the great Vic-
torian judge and historian of the Criminal Law, James
Fitzjames Stephen. His criticism of Mill is to be found in
the sombre and impressive book Liberty, Equality, Frater-
nity/9 which he wrote as a direct reply to Mill's essay On
Liberty. It is evident from the tone of this book that Ste-
phen thought he had found crushing arguments against
Mill and had demonstrated that the law might justifiably
enforce morality as such or, as he said, that the law should
be "a persecution of the grosser forms of vice." 20 Nearly a
century later, on the publication of the Wolfenden Com-
mittee's report, Lord Devlin, now a member of the House
of Lords and a most distinguished writer on the criminal
law, in his essay on The Enforcement of Morall 1 took as
his target the Report's contention "that there must be a
realm of morality and immorality which is not the law's
business" and argued in opposition to it that "the suppres-
sion of vice is as much the law's business as the suppression
of subversive activities."
Though a century divides these two legal writers, the
similarity in the general tone and sometimes in the detail
of their arguments is very great. I shall devote the re-
19 2nd edition, London, 1874.
20 Ibid., p. 162.
21 Oxford University Press, 1959·
mainder of these lectures to an examination of them. I do
this because, though their arguments are at points con-
fused, they certainly still deserve the compliment of ra-
tional opposition. They are not only admirably stocked
with concrete examples, but they express the considered
views of skilled, sophisticated lawyers experienced in the
administration of the criminal law. Views such as theirs
are still quite widely held especially by lawyers both in
England and in this country; it may indeed be that they
are more popul:~r, in both countries, than Mill's doctrine
of Liberty.

POSITIVE AND CRITICAL MORALITY

Before we consider the detail of these arguments, it

is, I think, necessary to appreciate three different but con-
nected features of the question with which we are con-
cerned.
In all the three formulations given on page 4 it is plain
that the question is one about morality, but it is important
to observe that it is also itself a question of morality. It is
the question whether the enforcement of morality is mor-
ally justified; so morality enters into the question in two
ways. The importance of this feature of the question is
that it would plainly be no sufficient answer to show that
in fact in some society-our own or others-it was widely
regarded as morally quite right and proper to enforce, by
mainder of these lectures to an examination of them. I do
this because, though their arguments are at points con-
fused, they certainly still deserve the compliment of ra-
tional opposition. They are not only admirably stocked
with concrete examples, but they express the considered
views of skilled, sophisticated lawyers experienced in the
administration of the criminal law. Views such as theirs
are still quite widely held especially by lawyers both in
England and in this country; it may indeed be that they
are more popul:~r, in both countries, than Mill's doctrine
of Liberty.

POSITIVE AND CRITICAL MORALITY

Before we consider the detail of these arguments, it

is, I think, necessary to appreciate three different but con-
nected features of the question with which we are con-
cerned.
In all the three formulations given on page 4 it is plain
that the question is one about morality, but it is important
to observe that it is also itself a question of morality. It is
the question whether the enforcement of morality is mor-
ally justified; so morality enters into the question in two
ways. The importance of this feature of the question is
that it would plainly be no sufficient answer to show that
in fact in some society-our own or others-it was widely
regarded as morally quite right and proper to enforce, by
legal punishment, compliance with the accepted morality.
No one who seriously debates this question would regard
Mill as refuted by the simple demonstration that there are
some societies in which the generally shared morality en-
dorses its own enforcement by law, and does so even in
those cases where the immorality was thought harmless to
others. The existence of societies which condemn associ-
ation between white and coloured persons as immoral and
punish it by law still leaves our question to be argued. It
is true that Mill's critics have often made much of the fact
that English law does in several instances, apparently with
the support of popular morality, punish immorality as such,
especially in sexual matters; but they have usually admitted
that this is where the argument begins, not where it ends.
I shall indeed later claim that the play made by some
legal writers with what they treat as examples of the legal
enforcement of morality "as such" is sometimes confused.
But they do not, at any rate, put forward their case as
simply proved by pointing to these social facts. Instead
they attempt to base their own conclusion that it is morally
justifiable to use the criminal law in this way on principles
which they believe to be universally applicable, and which
they think are either quite obviously rational or will be
seen to be so after discussion.
Thus Lord Devlin bases his affirmative answer to the
question on the quite general principle that it is permissible
for any society to take the steps needed to preserve its own
existence as an organized society/ 2 and he thinks that im-
morality-even private sexual immorality-may, like
treason, be something which jeopardizes a society's exist-
ence. Of course many of us may doubt this general prin-
ciple, and not merely the suggested analogy with treason.
We might wish to argue that whether or not a society is
justified in taking steps to preserve itself must depend both
on what sort of society it is and what the steps to be taken
are. If a society were mainly devoted to the cruel persecu-
tion of a racial or religious minority, or if the steps to be
taken included hideous tortures, it is arguable that what
Lord Devlin terms the "disintegration" 23 of such a society
would be morally better than its continued existence, and
steps ought not to be i.aken to preserve it. Nonetheless Lord
Devlin's principle that a society may take the steps re-
quired to preserve its organized existence is not itself ten-
dered as an item of English popular morality, deriving its
cogency from its status as part of our institutions. He puts
it forward as a principle, rationally acceptable, to be used
in the evaluation or criticism of social institutions generally.
And it is surely clear that anyone who holds the question
whether a society has the "right" to enforce morality, or
whether it is morally permissible for any society to enforce
its morality by law, to be discussable at all, must be pre-
pared to deploy some such general principles of critical
22 The Enforcement of Morals, pp. 13-14.
23 Ibid., pp. 14-IS.
morality. 24 In asking the question, we are assuming the
legitimacy of a standpoint which permits criticism of the
institutions of any society, in the light of general principles
and knowledge of the facts.
To make this point clear, I would revive the terminol-
ogy much favoured by the Utilitarians of the last century,
which distinguished "positive morality," the morality
actually accepted and shared by a given social group, from
the general moral principles used in the criticism of actual
social institutions including positive morality. We may
call such general principles "critical morality" and say that
our question is one of critical morality about the legal en-
forcement of positive morality.
A second feature of our question worth attention is
simply that it is a question of justification. In asking it we
are committed at least to the general critical principle that
the use of legal coercion by any society calls for justification
as something prima facie objectionable to be tolerated only
for the sake of some countervailing good. For where there
is no prima facie objection, wrong, or evil, men do not ask
for or give justifications of social practices, though they
24 Lord Devlin has been criticised for asking the question

whether society has a right to enforce its judgment in matters of

morality on the ground that to talk of "right" in such a context is
meaningless. See Graham Hughes, "Morals and the Criminal Law,"
71 Yale L.J. (1962) at 672. This criticism is mistaken, just because
Lord Devlin invokes some general critical principle in support of
his affirmative answer to the question.

20
may ask for and give explanations of these practices or
may attempt to demonstrate their value.
It is salutary to inquire precisely what it is that is prima
facie objectionable in the legal enforcement of morality;
for the idea of legal enforcement is in fact less simple than
is often assumed. It has two different but related aspects.
One is the actual punishment of the offender. This char-
acteristically involves depriving him of liberty of move-
ment or of property or of association with family or
friends, or the infliction upon him of physical pain or even
death. All these are things which are assumed to be wrong
to inflict on others without special justification, and in fact
they are so regarded by the law and morality of all devel-
oped societies. To put it as a lawyer would, these are things
which, if they are not justified as sanctions, are delicts or
wrongs.
The second aspect of legal enforcement bears on those
who may never offend against the law, but are coerced
into obedience by the threat of legal punishment. This
rather than physical restrictions is what is normally meant
in the discussion of political arrangements by restrictions
on liberty. Such restrictions, it is to be noted, may be
thought of as calling for justification for several quite dis-
tinct reasons. The unimpeded exercise by individuals of
free choice may be held a value in itself with which it is
prima facie wrong to interfere; or it may be thought valu-
able because it enables individuals to experiment-even

21
with living-and to discover things valuable both to them·
selves and to others. But interference with individual
liberty may be thought an evil requiring justification for
simpler, utilitarian reasons; for it is itself the infliction of
a special form of suffering-often very acute-on those
whose desires are frustrated by the fear of punishment.
This is of particular importance in the case of laws enforc·
ing a sexual morality. They may create misery of a quite
special degree. For both the difficulties involved in the re·
pression of sexual impulses and the consequences of re·
pression are quite different from those involved in the ab.
stention from "ordinary" crime. Unlike sexual impulses,
the impulse to steal or to wound or even kill is not, except
in a minority of mentally abnormal cases, a recurrent and
insistent part of daily life. Resistance to the temptation to
commit these crimes is not often, as the suppression of
sexual impulses generally is, something which affects the
development or balance of the individual's emotional life,
happiness, and personality.
Thirdly, the distinction already made, between positive
morality and principles of critical morality, may serve to
dissipate a certain misunderstanding of the question and
to clarify its central point. It is sometimes said that the
question is not whether it is morally justifiable to enforce
morality as such, but only which morality may be enforced.
Is it only a utilitarian morality condemning activities
which are harmful to others? Or is it a morality which

22
also condemns certain activities whether they are harmful
or not? This way of regarding the question misrepresents
the character of, at any rate, modern controversy. A utili~
tarian who insists that the law should only punish activities
which are harmful adopts this as a critical principle, and,
in so doing, he is quite unconcerned with the question
whether a utilitarian morality is or is not already accepted
as the positive morality of the society to which he applies
his critical principles. If it is so accepted, that is not, in his
view, the reason why it should be enforced. It is true that
if he is successful in preaching his message to a given soci~
ety, members of it will then be compelled to behave as
utilitarians in certain ways, but these facts do not mean
that the vital difference between him and his opponent is
only as to the content of the morality to be enforced. For
as may be seen from the main criticisms of Mill, the Utili~
tarian's opponent, who insists that it is morally permissible
to enforce morality as such, believes that the mere fact that
certain rules or standards of behaviour enjoy the status of
a society's positive morality is the reason-or at least part
of the reason-which justifies their enforcement by law.
No doubt in older controversies the opposed positions were
different: the question may have been whether the state
could punish only activities causing secular harm or also
acts of disobedience to what were believed to be divine
commands or prescriptions of Natural Law. But what is
crucial to the dispute in its modern form is the significance
to be attached to the historical fact that certain conduct, no
matter what, is prohibited by a positive morality. The utili-
tarian denies that this has any significance sufficient to
justify its enforcement; his opponent asserts that it has.
These are divergent critical principles which do not differ
merely over the content of the morality to be enforced, but
over a more fundamental and, surely, more interesting
lSSUe.
 II

THE USE AND ABUSE OF EXAMPLES

Both in England and in America the criminal law still

contains rules which can only be explained as attempts to
enforce morality as such: to suppress practices condemned
as immoral by positive morality though they involve noth-
ing that would ordinarily be thought of as harm to other
persons. Most of the examples come from the sphere of
sexual morals, and in England they include laws against
various forms of homosexual behaviour between males,
sodomy between persons of different sex even if married,
bestiality, incest, living on the earnings of prostitution,
keeping a house for prostitution, and also, since the de-
cision in Shaw's case, a conspiracy to corrupt public morals,
interpreted to mean, in substance, leading others (in the
opinion of a jury) "morally astray." To this list some
would add further cases: the laws against abortion, against
those forms of bigamy or polygamy which do not involve
deception, against suicide and the practice of euthanasia.
But, as I shall later argue, the treatment of some of these
latter as attempts to enforce morality as such, is a mistake
due to the neglect of certain important distinctions.
In America a glance at the penal statutes of the various
states of the Union reveals something quite astonishing to
English eyes. For in addition to such offences as are pun-
ishable under English law, there seems to be no sexual
practice, except "normal" relations between husband and
wife and solitary acts of masturbation, which is not for-
bidden by the law of some state. In a very large number
of states adultery, which has not been criminally punish-
able in England since Cromwell's time, is a crime, though,
in a minority of states, this is so only if it is open, noto-
rious, or continuous. Fornication is not a criminal offence
in England or in most countries of the civilized world,
but only a minority of American states do not have stat-
utes making fornication under certain conditions punish-
able, and some states make even a single act punishable. 1
Besides these statutory provisions there i5 an unknown
quantity of local or municipal enactments which, in some
cases, are more restrictive than the state laws, and though
these are for that reason of doubtful validity, they have
been enforced. In California the penal code does not make
prostitution or fornication a crime, yet for many years

1See, for a short summary, the American Law Institute, Model

Penal Code, Tentative Draft No. 4, pp. 204-ro.
persons have been convicted in Los Angeles under a local
ordinance of the offence commonly known as "resorting,"
solely on proof that they used a room for fornication. 2
No doubt much, and perhaps most, of this American
legislation against sexual immorality is as dead a letter as
it is commonly said to be. But the facts as to law enforce-
ment are at present very hard to establish. In many states,
California among them, the annual criminal statistics do
not usually break down figures for sex crimes further than
the two heads of "Rape" and "Other sexual offences." But
in Boston as late as 1954 the sex laws were reported to
receive "normal" enforcement, and in 1948 there were 248
arrests for adultery in that city. 3 No one, I think, should
contemplate this situation with complacency, for in com-
bination with inadequate published statistics the existence
of criminal laws which are generally not enforced places
formidable discriminatory powers in the hands of the
police and prosecuting authorities.
Mill's critics have always pointed to the actual existence
of laws punishing mere immorality as if this in some way
threw doubt on his claim that the criminal law should not

2 The State Supreme Court in December r96r held the ordi-

nance to be in conflict with the state laws and void. See in re Carol
Lane, Crim. No. 6929, 57 A.C. 103, r8 Cal. Rptr. 33· This was con-
firmed after a rehearing on June 28, 1962. 22 Cal. Rptr. 857.
3 American Law Institute, Model Penal Code,-Tentative Draft

No. 4, p. 205, n. r6.

be used for this purpose. His defenders have indeed com-
plained that the critics were here guilty of fallacious reason-
ing or irrelevance. John Morley, for example, in a vivid
phrase said that in Stephen's book "a good deal of bustling
ponderosity is devoted" to establishing the existence of laws
of this sort; he thought that Stephen had simply failed to
see that "the actual existence of laws of any given kind is
wholly irrelevant to Mr. Mill's contention, which is that
it would be better if laws of such a kind did not exist." 4
In fact, neither Stephen (except in one place 5 ) nor Lord
Devlin, who also appeals to the actual content of English
criminal law, is guilty of this form of the fallacy of arguing
from what is to what should be, nor are they guilty of
irrelevance. Stephen, when forced by Morley to state why
he regarded his examples as relevant to the argument, ex-
plained that he thought it "not irrelevant to show that
Mill was at issue with the practical conclusions to which
most nations had been led by experience." In somewhat
similar fashion Lord Devlin said:
Is the argument consistent or inconsistent with the fun-
damental principles of English law as it exists today?
That is the first way of testing it though by no means a
conclusive one. In the field of jurisprudence one is at
liberty to overturn even fundamental conceptions if
they are theoretically unsound. But to see how the

4 Quoted in Liberty, Equality, Fraternity, p. 166 n.

5 /bid., pp. 171-72.
 argument fares under the existing law is a good starting
point.6

Both writers, I think, in these perhaps not very perspicu-

ous remarks, intend to invoke only the innocuous conserv-
ative principle that there is a presumption that common
and long established institutions are likely to have merits
not apparent to the rationalist philosopher. Nonetheless,
when we examine some of the particular rules or principles
of criminal law discussed at length by these writers, it is
apparent that the use made of them is both confused and
confusing. These examples are not drawn from the area of
sexual morals, and certainly many, who would wish to
align themselves with Mill and protest against the use of
the criminal law to punish practices simply because they
offend positive morality, might hesitate or refuse to jettison
the particular rules of criminal law instanced by these
writers. So if they are correctly classed as rules which can
only be explained as designed to enforce morality their
persuasive force is very considerable. We may indeed, to
use Stephen's words, "be disposed to doubt" whether a
principle that would condemn these particular rules could
be right. But there are, I think, good reasons for disputing
these writers' treatment of these rules as examples of the
use of the law solely to enforce morality. We are not
forced to choose between jettisoning them or assenting to

6 The Enforcement of Morals, p. 7·

the principle that the criminal law may be used for that
purpose. Some closer analysis than these authors give to
these examples is, however, required, and to this I now
turn.

PATERNALISM AND THE ENFORCEMENT OF MORALITY

I shall start with an example stressed by Lord Devlin.

He points oue that, subject to certain exceptions such as
rape, the criminal law has never admitted the consent of
the victim as a defence. It is not a defence to a charge of
murder or a deliberate assault, and this is why euthanasia
or mercy killing terminating a man's life at his own request
is still murder. This is a rule of criminal law which many
now would wish to retain, though they would also wish to
object to the legal punishment of offences against positive
morality which harm no one. Lord Devlin thinks that
these attitudes are inconsistent, for he asserts of the rule
under discussion, "There is only one explanation," and
this is that "there are certain standards of behaviour or
moral principles which society requires to be observed." 8
Among these are the sanctity of human life and presumably
(since the rule applies to assaults) the physical integrity of
the person. So in the case of this rule and a number of
others Lord Devlin claims that the "function" of the crimi-

7 The Enforcement of Morals, p. 8. 8 /bid.

the principle that the criminal law may be used for that
purpose. Some closer analysis than these authors give to
these examples is, however, required, and to this I now
turn.

PATERNALISM AND THE ENFORCEMENT OF MORALITY

I shall start with an example stressed by Lord Devlin.

He points oue that, subject to certain exceptions such as
rape, the criminal law has never admitted the consent of
the victim as a defence. It is not a defence to a charge of
murder or a deliberate assault, and this is why euthanasia
or mercy killing terminating a man's life at his own request
is still murder. This is a rule of criminal law which many
now would wish to retain, though they would also wish to
object to the legal punishment of offences against positive
morality which harm no one. Lord Devlin thinks that
these attitudes are inconsistent, for he asserts of the rule
under discussion, "There is only one explanation," and
this is that "there are certain standards of behaviour or
moral principles which society requires to be observed." 8
Among these are the sanctity of human life and presumably
(since the rule applies to assaults) the physical integrity of
the person. So in the case of this rule and a number of
others Lord Devlin claims that the "function" of the crimi-

7 The Enforcement of Morals, p. 8. 8 /bid.

nallaw is "to enforce a moral principle and nothing else."9
But this argument is not really cogent, for Lord Dev-
lin's statement that "there is only one explanation" is
simply not true. The rules excluding the victim's consent
as a defence to charges of murder or assault may perfectly
well be explained as a piece of paternalism, designed to
protect individuals against themselves. Mill no doubt
might have protested against a paternalistic policy of using
the law to protect even a consenting victim from bodily
harm nearly as much as he protested against laws used
merely to enforce positive morality; but this does not mean
that these two policies are identical. Indeed, Mill himself
was very well aware of the difference between them: for
in condemning interference with individual liberty except
to prevent harm to others he mentions separate types of
inadequate ground which have been proffered for the use
of compulsion. He distinguishes "because it will be better
for him" and "because it will make him happier" from
"because in the opinion of others it would be right.mo
Lord Devlin says of the attitude of the criminal law to
the victim's consent that if the law existed for the protection
of the individual there would be no reason why he should
avail himself of it if he did not want it.11 But paternalism
-the protection of people against themselves-is a per-
9/bid., p. 9·
10 On Liberty, Chapter I.

11 The Enforcement of Morals, p. 8.

fectly coherent policy. Indeed, it seems very strange in
mid-twentieth century to insist upon this, for the wane of
laissez faire since Mill's day is one of the commonplaces of
social history, and instances of paternalism now abound in
our law, criminal and civil. The supply of drugs or nar-
cotics, even to adults, except under medical prescription is
punishable by the criminal law, and it would seem very
dogmatic to say of the law creating this offence that "there
is only one explanation," namely, that the law was con-
cerned not with the protection of the would-be purchasers
against themselves, but only with the punishment of the
seller for his immorality. If, as seems obvious, paternalism
is a possible explanation of such laws, it is also possible in
the case of the rule excluding the consent of the victim as
a defence to a charge of assault. In neither case are we
forced to conclude with Lord Devlin that the law's "func-
tion" is "to enforce a moral principle and nothing else.m 2
In Chapter 5 of his essay Mill carried his protests
against paternalism to lengths that may now appear to us
fantastic. He cites the example of restrictions of the sale of
drugs, and criticises them as interferences with the liberty
of the would-be purchaser rather than with that of the
seller. No doubt if we no longer sympathise with this criti-
cism this is due, in part, to a general decline in the belief
that individuals know their own interests best, and to an
12 See, for other possible explanations of these rules, Hughes,

"Morals and the Criminal Law," p. 67o.

increased awareness of a great range of factors which
diminish the significance to be attached to an apparently
free choice or to consent. Choices may be made or consent
given without adequate reflection or appreciation of the
consequences; or in pursuit of merely transitory desires;
or in various predicaments when the judgment is likely to
be clouded; or under inner psychological compulsion; or
under pressure by others of a kind too subtle to be suscepti-
ble of proof in a law court. Underlying Mill's extreme fear
of paternalism there perhaps is a conception of what a
normal human being is like which now seems not to cor-
respond to the facts. Mill, in fact, endows him with too
much of the psychology of a middle-aged man whose de-
sires are relatively fixed, not liable to be artificially stimu-
lated by external influences; who knows what he wants
and what gives him satisfaction or happiness; and who
pursues these things when he can.
Certainly a modification in Mill's principles is required,
if they are to accommodate the rule of criminal law under
discussion or other instances of paternalism. But the modi-
fied principles would not abandon the objection to the use
of the criminal law merely to enforce positive morality.
They would only have to provide that harming others is
something we may still seek to prevent by use of the crimi-
nal law, even when the victims consent to or assist in the
acts which are harmful to them. The neglect of the dis-
tinction between paternalism and what I have termed legal

33
moralism is important as a form of a more general error.
It is too often assumed that if a law is not designed to pro-
tect one man from another its only rationale can be that it
is designed to punish moral wickedness or, in Lord Dev-
lin's words, "to enforce a moral principle." Thus it is often
urged that statutes punishing cruelty to animals can only
be explained in that way. But it is certainly intelligible,
both as an account of the original motives inspiring such
legislation and as the specification of an aim widely held
to be worth pursuing, to say that the law is here concerned
with the suffering, albeit only of animals, rather than with
the immorality of torturing them.13 Certainly no one who
supports this use of the criminal law is thereby bound in
consistency to admit that the law may punish forms of im-
morality which involve no suffering to any sentient being.

THE MORAL GRADATION OF PUNISHMENT

I now turn back to a very different and perhaps more

illuminating error made by Stephen, in his effort to show
that the criminal law not only should be but actually was
a "persecution of the grosser forms of vice," 14 and not
merely an instrument for the prevention of suffering or

13 Lord Devlin seems quite unaccountably to ignore this point

in his brief reference to cruelty to animals, The Enforcement of

Morals, p. 17.
14 Liberty, Equality, Fraternity, p. 162.

34
moralism is important as a form of a more general error.
It is too often assumed that if a law is not designed to pro-
tect one man from another its only rationale can be that it
is designed to punish moral wickedness or, in Lord Dev-
lin's words, "to enforce a moral principle." Thus it is often
urged that statutes punishing cruelty to animals can only
be explained in that way. But it is certainly intelligible,
both as an account of the original motives inspiring such
legislation and as the specification of an aim widely held
to be worth pursuing, to say that the law is here concerned
with the suffering, albeit only of animals, rather than with
the immorality of torturing them.13 Certainly no one who
supports this use of the criminal law is thereby bound in
consistency to admit that the law may punish forms of im-
morality which involve no suffering to any sentient being.

THE MORAL GRADATION OF PUNISHMENT

I now turn back to a very different and perhaps more

illuminating error made by Stephen, in his effort to show
that the criminal law not only should be but actually was
a "persecution of the grosser forms of vice," 14 and not
merely an instrument for the prevention of suffering or

13 Lord Devlin seems quite unaccountably to ignore this point

in his brief reference to cruelty to animals, The Enforcement of

Morals, p. 17.
14 Liberty, Equality, Fraternity, p. 162.

34
harm. He claimed that certain principles "universally ad-
mitted and acted upon as regulating the amount of punish-
mentm5 showed this to be the case. His argument is simply
this. When the question is how severely an offender should
be punished, an estimate of the degree of moral wickedness
involved in the crime is always relevant. This is why the
strength of temptation, diminishing the moral guilt, in
most cases operates in mitigation of punishment; whereas
if the object of legal punishment were simply to prevent
harmful acts this would not be so.
A judge has before him two criminals, one of whom
appears from the circumstances of the case to be igno-
rant and depraved, and to have given way to a very
strong temptation under the influence of the other, who
is a man of rank and education, and who committed
the offence of which both are convicted under com-
paratively slight temptation. I will venture to say that
if he made any difference between them at all every
judge on the English bench would give the first man
a lighter sentence than the second.16
There is, of course, little doubt that Stephen here accu-
rately portrays conventional views, frequently applied by
Courts in administering the criminal law, though perhaps
with less agreement now than when Stephen wrote. Cer-
tainly many who would protest against the legal enforce-
ment of sexual morality might yet admit or even insist that

15 Ibid. 16 Ibid., p. 163.

35
greater wickedness should aggravate, and lesser wicked-
ness should mitigate, the severity of punishment. But from
this fact Stephen, like many others, inferred too much. He
claimed that if we attach importance to the principle that
the moral difference between offences should be reflected
in the gradation of legal punishments, this showed that the
object of such punishment was not merely to prevent acts
"dangerous to society" but "to be a persecution of the
grosser forms of vice.m 7 And if the object of the criminal
law is (or includes) "promoting virtue" and "preventing
vice," 18 it follows, he thought, that "it ought to put a re-
straint upon vice not to such an extent merely as is neces-
sary for definite self-protection but generally on the ground
that vice is a bad thing.m 9 So we may make punishable by
law actions which are condemned by society as immoral,
even if they are not harmful.
Surely this argument is a non sequitur generated by
Stephen's failure to see that the questions "What sort of
conduct may justifiably be punished?" and "How severely
should we punish different offenses?" are distinct and in-
dependent questions. There are many reasons why we
might wish the legal gradation of the seriousness of crimes,
expressed in its scale of punishments, not to conflict with
common estimates of their comparative wickedness. One
reason is that such a conflict is undesirable on simple utili-
17 Liberty, Equality, Fraternity, p. 162.
18 Ibid., p. 159. 19 Ibid., pp. 147-48.
tarian grounds: it might either confuse moral judgments
or bring the law into di~repute, or both. Another reason
is that principles of justice or fairness between different
offenders require morally distinguishable offences to be
treated differently and morally similar offences to be
treated alike. These principles are still widely respected,
although it is also true that there is a growing disinclina-
tion to insist on their application where this conflicts with
the forward-looking aims of punishment, such as preven-
tion or reform. But those who concede that we should at-
tempt to adjust the severity of punishment to the moral
gravity of offences are not thereby committed to the view
that punishment merely for immorality is justified. For
they can in perfect consistency insist on the one hand that
the only justification for having a system of punishment is
to prevent harm and only harmful conduct should be pun-
ished, and, on the other, agree that when the question of
the quantum of punishment for such conduct is raised, we
should defer to principles which make relative moral
wickedness of different offenders a partial determinant of
the severity of punishment.
It is in general true that we cannot infer from principles
applied in deciding the severity of punishment what the
aims of the system of punishment are or what sorts of con-
duct may justifiably be punished. For some of these prin-
ciples, e.g·, the exclusion of torture or cruel punishments,
may represent other values with which we may wish to

37
compromise, and our compromise with them may restrict
the extent to which we pursue the main values which jus~
tify punishment. So if in the course of punishing only
harmful activities we think it right (for either of the two
reasons distinguished above) to mark moral differences
between different offenders, this does not show that we
must also think it right to punish activities which are not
harmful. It only shows that, in the theory of punishment,
what is in the end morally tolerable is apt to be more com-
plex than our theories initially suggest. We cannot usually
in social life pursue a single value or a single moral aim, un-
troubled by the need to compromise with others.

PRIVATE IMMORALITY AND PUBLIC INDECENCY

So far, scrutiny of two examples used by the writers we

have considered has established two important distinctions:
the distinction between paternalism and the enforcement
of morality, and that between justifying the practice of
punishment and justifying its amount. Our third example
is the crime of bigamy. This is not discussed by Stephen or
Lord Devlin, but the punishment of polygamy is cited as
an example of the legal enforcement of morality by Dean
Rostow in his essay defending Lord Devlin against his
critics. 20 It is, however, a curiously complex case, and an
~ 0 "The Enforcement of Morals," 174 Cambridge L.J. ( 1960) at
p. 190. Dean Rostow mainly discusses polygamy "based on sincere
compromise, and our compromise with them may restrict
the extent to which we pursue the main values which jus~
tify punishment. So if in the course of punishing only
harmful activities we think it right (for either of the two
reasons distinguished above) to mark moral differences
between different offenders, this does not show that we
must also think it right to punish activities which are not
harmful. It only shows that, in the theory of punishment,
what is in the end morally tolerable is apt to be more com-
plex than our theories initially suggest. We cannot usually
in social life pursue a single value or a single moral aim, un-
troubled by the need to compromise with others.

PRIVATE IMMORALITY AND PUBLIC INDECENCY

So far, scrutiny of two examples used by the writers we

have considered has established two important distinctions:
the distinction between paternalism and the enforcement
of morality, and that between justifying the practice of
punishment and justifying its amount. Our third example
is the crime of bigamy. This is not discussed by Stephen or
Lord Devlin, but the punishment of polygamy is cited as
an example of the legal enforcement of morality by Dean
Rostow in his essay defending Lord Devlin against his
critics. 20 It is, however, a curiously complex case, and an
~ 0 "The Enforcement of Morals," 174 Cambridge L.J. ( 1960) at
p. 190. Dean Rostow mainly discusses polygamy "based on sincere
examination of it shows that punishment of bigamy is not
to be classed unambiguously as an attempt to enforce mo-
rality. In the short discussion of it which follows I shall
attempt to show that in this case, as in the two already dis-
cussed, those who would wish to retain this rule of criminal
law are not thereby committed to the policy of punishing
immorality as such; for its punishment can be supported
on other reasonable grounds.
In most common law jurisdictions it is a criminal of-
fence for a married person during the lifetime of an exist-
ing husband or wife to go through a ceremony of marriage
with another person, even if the other person knows of the
existing marriage. The punishment of bigamy not involv-
ing deception is curious in the following respect. In Eng-
land and in many other jurisdictions where it is punish-
able, the sexual cohabitation of the parties is not a criminal
offence. If a married man cares to cohabit with another
woman-or even several other women-he may do so with
impunity so far as the criminal law is concerned. He may
set up house and pretend that he is married: he may cele-
brate his union with champagne and a distribution of
wedding cake and with all the usual social ceremonial of a

religious belief" rather than "bigamy contracted for pleasure." He

asks (rhetorically) "Should we not conclude that monogamy is so
fundamental a theme in the existing common morality of the United
States that the condemnation of polygamy as a crime is justified
even though the law rests on 'feeling' and not on 'reason'?"

39
valid marriage. None of this is illegal; but if he goes
through a ceremony of marriage, the law steps in not
merely to declare it invalid but to punish the bigamist.
Why does the law interfere at this point, leaving the
substantial immorality of sexual cohabitation alone? Vari-
ous answers have been given to this question. Some have
suggested that the purpose of the legal punishment of
bigamy is to protect public records from confusion, or to
frustrate schemes to misrepresent illegitimate children as
legitimate. The American Law Institute suggests in its
commentary on the draft Model Penal Code that bigamous
adultery, even where it does not involve deception, might
call for punishment because it is a public affront and provo-
cation to the first spouse, and also because cohabitation
under the colour of matrimony is specially likely "to result
in desertion, non-support, and divorce." 2 ' These, it is
urged, are harms to individuals which the criminal law
may properly seek to prevent by punishment.
Some at least of these suggested grounds seem more in-
genious than convincing. The harms they stress may be
real enough; yet many may still think that a case for pun-
ishing bigamy would remain even if these harms were un-
likely to result, or if they were catered for by the creation of
specific offences which penalized not the bigamy but, for
example, the causing of false statements to be entered into
official records. Perhaps most who find these various justi-
21 Seep. 220.
fications of the existing law unconvincing but still wish to
retain it would urge that in a country where deep religious
significance is attached to monogamous marriage and to
the act of solemnizing it, the law against bigamy should
be accepted as an attempt to protect religious feelings from
offence by a public act desecrating the ceremony. Again
as with the two previous examples, the question is whether
those who think that the use of the criminal law for these
purposes is in principle justified are inconsistent if they
also deny that the law may be used to punish immorality
as such.
I do not think that there is any inconsistency in this
combination of attitudes, but there is a need for one more
important distinction. It is important to see that if, in the
case of bigamy, the law intervenes in order to protect re-
ligious sensibilities from outrage by a public act, the biga-
mist is punished neither as irreligious nor as immoral but
as a nuisance. For the law is then concerned with the of-
fensiveness to others of his public conduct, not with the
immorality of his private conduct, which, in most countries,
it leaves altogether unpunished. In this case, as in the case
of ordinary crimes which cause physical harm, the protec-
tion of those likely to be affected is certainly an intelligible
aim for the law to pursue, and it certainly could not be
said of this case that "the function of the criminal law is to
enforce a moral principle and nothing else." It is to be
noted that Lord Devlin himself, unlike his defender Dean
Rostow, seems to attend to this distinction; for he does not
include bigamy in his list of crimes which the principles of
the Wolfenden Report would compel us to reject. This is
not an oversight, for he specifically says of those which are
included in the list that "they are all acts which can be done
in private and without offence to others." 22
It is perhaps doubtful whether Mill's principles as
stated in the essay On Liberty would have allowed the
punishment of bigamy, where no deception was involved,
on the ground that it was a public act offensive to religious
feelings. For although it is clear that he thought considera-
tion might be due to the "feelings" as well as to the "in-
terests" of others, and an act causing offence to feelings
might deserve at least moral blame, he both asserts this and
qualifies it in language which is notoriously very difficult
to interpret. He seems to have thought that blame and
punishment for offence to feelings were justified only if at
least two conditions were satisfied: first that some close
association or special relationship existed between the
parties making consideration an obligation to "assignable"
individuals; and secondly that the harm should not be
"merely contingent" or "constructive." 23

22 The Enforcement of Morals, p. 9· Nonetheless Lord Devlin

warmly endorses Dean Rostow's defence. See "Law, Democracy,

and Morality," IIO University of Pennsylvania L.R. ( r962) at p.
640.
23 On Liberty, Chapter 4·
 If we disregard the first of these conditions as too re-
strictive, and interpret the second to mean only that the
offence to feelings should be both serious and likely, the
question whether or not to punish bigamy will depend on
comparative estimates (over which men may of course
differ) of the seriousness of the offence to feelings and of
the sacrifice of freedom and suffering demanded and im-
posed by the law. Supporters of the law could certainly
argue that very little sacrifice or suffering is demanded by
the law in this instance. It denies only one, though doubt-
less the most persuasive, item of the appearance of legal
respectability to parties who are allowed to enjoy the sub-
stance and parade all the other simulacra of a valid mar-
riage. The case is therefore utterly different from attempts
to enforce sexual morality which may demand the repres-
sion of powerful instincts with which personal happiness
is intimately connected. On the other hand, opponents of
the law may plausibly urge, in an age of waning faith, that
the religious sentiments likely to be offended by the public
celebration of a bigamous marriage are no longer very
widespread or very deep and it is enough that such mar-
riages are held legally invalid.
The example of bigamy shows the need to distinguish
between the immorality of a practice and its aspect as a
public offensive act or nuisance. This is of general im-
portance; for English law has often in the course of its
development come to view in just this light conduct pre-

43
viously punished simply because it was forbidden by ac-
cepted religion or morality. Thus any denial of the truths
of the Christian religion was once punished in England as
blasphemy, whereas now it is only punishable if it is made
in an offensive or insulting manner, likely to cause a breach
of the peace. Those who support this modern form of the
punishment of blasphemy are not, of course, committed to
belief in the religion of those whose feelings are thereby
protected from insult. They may indeed quite consistently
oppose any attempt to enforce conformity with that or any
religion.
In sexual matters a similar line generally divides the
punishment of immorality from the punishment of inde-
cency.~The Romans distinguished the province of the Cen-
sor, concerned with morals, from that of the Aedile, con-
cerned with public decency, but in modern times perhaps
insufficient attention has been given to this distinction. 24
Indeed, Lord Simonds in his speech in the House of Lords
in Shaw's case went out of his way to profess indifference
to it.
It matters little what label is given to the offending act.
To one of your Lordships it may appear an affront to
public decency, to another considering that it may suc-
ceed in its obvious intention of provoking libidinous
desires it will seem a corruption of morality. 25
24 But see "The Censor as Aedile," Times Literary Suppl., Au-
gust 4, 196r.
25 ( 1961) 2 A.E.R. at 452.

44
 But the distinction is in fact both clear and important.
Sexual intercourse between husband and wife is not im-
moral, but if it takes place in public it is an affront to
public decency. Homosexual intercourse between consent-
ing adults in private is immoral according to conventional
morality, but not an affront to public decency, though it
would be both if it took place in public. But the fact that
the same act, if done in public, could be regarded both as
immoral and as an affront to public decency must not blind
us to the difference between these two aspects of conduct
and to the different principles on which the justification of
their punishment must rest. The recent English law re-
lating to prostitution attends to this difference. It has not
made prostitution a crime but punishes its public manifesta-
tion in order to protect the ordinary citizen, who is an un-
willing witness of it in the streets, from something of-
fensive.
It may no doubt be objected that too much has been
made in this discussion of the distinction between what is
done in public and what is done in private. For offence to
feelings, it may be said, is given not only when immoral
activities or their commercial preliminaries are thrust upon
unwilling eyewitnesses, but also when those who strongly
condemn certain sexual practices as immoral learn that
others indulge in them in private. Because this is so, it is
pointless to attend to the distinction between what is done
privately and what is done in public; and if we do not at-

45
tend to it, then the policies of punishing men for mere im-
morality and punishing them for conduct offensive to the
feelings of others, though conceptually distinct, would not
differ in practice. All conduct strongly condemned as im-
moral would then be punishable.
It is important not to confuse this argument with the
thesis, which I shall later examine, that the preservation of
an existing social morality is itself a value justifying the use
of coercion. The present argument invokes in support of
the legal enforcement of morality not the values of morality
but Mill's own principle that coercion may be justifiably
used to prevent harm to others. Various objections may be
made to this use of the principle. It may be said that the
distress occasioned by the bare thought that others are of-
fending in private against morality cannot constitute
"harm," except in a few neurotic or hypersensitive persons
who are literally "made ill" by this thought. Others may
admit that such distress is harm, even in the case of normal
persons, but argue that it is too slight to outweigh the
great misery caused by the legal enforcement of sexual
morality.
Although these objections are not without force, they
are of subsidiary importance. The fundamental objection
surely is that a right to be protected from the distress which
is inseparable from the bare knowledge that others are
acting in ways you think wrong, cannot be acknowledged
by anyone who recognises individual liberty as a value.
For the extension of the utilitarian principle that coercion
may be used to protect men from harm, so as to include
their protection from this form of distress, cannot stop
there. If distress incident to the belief that others are doing
wrong is harm, so also is the distress incident to the belief
that others are doing what you do not want them to do.
To punish people for causing this form of distress would
be tantamount to punishing them simply because others
object to what they do; and the only liberty that could
coexist with this extension of the utilitarian principle is
liberty to do those things to which no one seriously objects.
Such liberty plainly is quite nugatory. Recognition of in-
dividual liberty as a value involves, as a minimum, accept-
ance of the principle that the individual may do what he
wants, even if others are distressed when they learn what
it is that he does-unless, of course, there are other good
grounds for forbidding it. No social order which accords
to individual liberty any value could also accord the right
to be protected from distress thus occasioned.
Protection from shock or offence to feelings caused by
some public display is, as most legal systems recognise,
another matter. The distinction may sometimes be a fine
one. It is so, in those cases such as the desecration of vener-
ated objects or ceremonies where there would be no shock
or offence to feeling, if those on whom the public display
is obtruded had not subscribed to certain religious or moral
beliefs. Nonetheless the use of punishment to protect those

47
made vulnerable to the public display by their own beliefs
leaves the offender at liberty to do the same thing in pri-
vate, if he can. It is not tantamount to punishing men
simply because others object to what they do.

THE MODERATE AND THE EXTREME THESIS

When we turn from these examples which are certainly

disputable to the positive grounds held to justify the legal
enforcement of morality it is important to distinguish a
moderate and an extreme thesis, though critics of Mill have
sometimes moved from one to the other without marking
the transition. Lord Devlin seems to me to maintain, for
most of his essay, the moderate thesis and Stephen the ex-
treme one.
According to the moderate thesis, a shared morality is
the cement of society; without it there would be aggregates
of individuals but no society. "A recognized morality" is,
in Lord Devlin's words, "as necessary to society's existence
as a recognized government," 26 and though a particular
act of immorality may not harm or endanger or corrupt
others nor, when done in private, either shock or give of-
fence to others, this does not conclude the matter. For we
must not view conduct in isolation from its effect on the
moral code: if we remember this, we can see that one who
is "no menace to others" nonetheless may by his immoral
26 The Enforcement of Morals, p. 13.
made vulnerable to the public display by their own beliefs
leaves the offender at liberty to do the same thing in pri-
vate, if he can. It is not tantamount to punishing men
simply because others object to what they do.

THE MODERATE AND THE EXTREME THESIS

When we turn from these examples which are certainly

disputable to the positive grounds held to justify the legal
enforcement of morality it is important to distinguish a
moderate and an extreme thesis, though critics of Mill have
sometimes moved from one to the other without marking
the transition. Lord Devlin seems to me to maintain, for
most of his essay, the moderate thesis and Stephen the ex-
treme one.
According to the moderate thesis, a shared morality is
the cement of society; without it there would be aggregates
of individuals but no society. "A recognized morality" is,
in Lord Devlin's words, "as necessary to society's existence
as a recognized government," 26 and though a particular
act of immorality may not harm or endanger or corrupt
others nor, when done in private, either shock or give of-
fence to others, this does not conclude the matter. For we
must not view conduct in isolation from its effect on the
moral code: if we remember this, we can see that one who
is "no menace to others" nonetheless may by his immoral
26 The Enforcement of Morals, p. 13.
conduct "threaten one of the great moral principles on
which society is based." 27 In this sense the breach of moral
principle is an offence "against society as a whole," 28 and
society may use the law to preserve its morality as it uses
it to safeguard anything else essential to its existence. This
is why "the suppression of vice is as much the law's busi-
ness as the suppression of subversive activities.m9
By contrast, the extreme thesis does not look upon a
shared morality as of merely instrumental value analogous
to ordered government, and it does not justify the punish-
ment of immorality as a step taken, like the punishment of
treason, to preserve society from dissolution or collapse.
Instead, the enforcement of morality is regarded as a thing
of value, even if immoral acts harm no one directly, or in-
directly by weakening the moral cement of society. I do not
say that it is possible to allot to one or other of these two
theses every argument used, but they do, I think, character-
ise the main critical positions at the root of most arguments,
and they incidentally exhibit an ambiguity in the expres-
sion "enforcing morality as such." Perhaps the clearest
way of distinguishing the two theses is to see that there are
always two levels at which we may ask whether some
breach of positive morality is harmful. We may ask first,
Does this act harm anyone independently of its repercus-
sion on the shared morality of society? And secondly we
may ask, Does this act affect the shared morality and there-
27 Ibid., p. 8. 28 Ibid. 29 I bid., P· I 5·

49
by weaken society ? The moderate thesis requires, if the
punishment of the act is to be justified, an affirmative
answer at least at the second level. The extreme thesis does
not require an affirmative answer at either level.
Lord Devlin appears to defend the moderate thesis. I
say "appears" because, though he says that society has the
right to enforce a morality as such on the ground that a
shared morality is essential to society's existence, it is not
at all clear that for him the statement that immorality
jeopardizes or weakens society is a statement of empirical
fact. It seems sometimes to be an a priori assumption, and
sometimes a necessary truth and a very odd one. The most
important indication that this is so is that, apart from one
vague reference to "history" showing that "the loosening
of moral bonds is often the first stage of disintegration," 30
no evidence is produced to show that deviation from ac-
cepted sexual morality, even by adults in private, is some-
thing which, like treason, threatens the existence of society.
No reputable historian has maintained this thesis, and
there is indeed much evidence against it. As a proposition
of fact it is entitled to no more respect than the Emperor
Justinian's statement that homosexuality was the cause of
earthquakes. 31 Lord Devlin's belief in it, and his apparent
indifference to the question of evidence, are at points trace-
able to an undiscussed assumption. This is that all moral-
30 The Enforcement of Morals, pp. 14-15.
31 Novels, 77 Cap. 1 and 141.

so
ity-sexual morality together with the morality that for-
bids acts injurious to others such as killing, stealing, and
dishonesty-forms a single seamless web, so that those who
deviate from any part are likely or perhaps bound to devi-
ate from the whole. It is of course clear (and one of the
oldest insights of political theory) that society could not
exist without a morality which mirrored and supplemented
the law's proscription of conduct injurious to others. But
there is again no evidence to support, and much to refute,
the theory that those who deviate from conventional sexual
morality are in other ways hostile to society.
There seems, however, to be central to Lord Devlin's
thought something more interesting, though no more con-
vincing, than the conception of social morality as a seamless
web. For he appears to move from the acceptable proposi-
tion that some shared morality is essential to the existence
of any society to the unacceptable proposition that a society
is identicaP 2 with its morality as that is at any given mo-
ment of its history, so that a change in its morality is tanta-
mount to the destruction of a society. The former propo-
sition might be even accepted as a necessary rather than an
empirical truth depending on a quite plausible definition of
society as a body of men who hold certain moral views in
common. But the latter proposition is absurd. Taken
strictly, it would prevent us saying that the morality of a
32 See, for this important point, Richard Wollheim, "Crime, Sin,

and Mr. Justice Devlin," Encounter, November 1959, p. 34·

given society had changed, and would compel us instead
to say that one society had disappeared and another one
taken its place. But it is only on this absurd criterion of
what it is for the same society to continue to exist that it
could be asserted without evidence that any deviation from
a society's shared morality threatens its existence.
It is clear that only this tacit identification of a society
with its shared morality supports Lord Devlin's denial
that there could be such a thing as private immorality and
his comparison of sexual immorality, even when it takes
place "in private," with treason. No doubt it is true that if
deviations from conventional sexual morality are tolerated
by the law and come to be known, the conventional mo-
rality might change in a permissive direction, though this
does not seem to be the case with homosexuality in those
European countries where it is not punishable by law. But
even if the conventional morality did so change, the society
in question would not have been destroyed or "subverted."
We should compare such a development not to the violent
overthrow of government but to a peaceful constitutional
change in its form, consistent not only with the preserva-
tion of a society but with its advance.

)2
 III

VARIETIES OF ENFORCEMENT

In the last lecture I distinguished a moderate and an ex-

treme form of the thesis that the criminal law might justifi-
ably be used to enforce morality. According to the moder-
ate thesis, there is certainly a contrast between crimes ob-
viously harmful to others (such as murder or assault) and
mere immoral conduct, forbidden by law, which takes
place between consenting adults in private. This contrast
seems at first sight to warrant our regarding the legal pro-
hibition and punishment of the latter as the enforcement
of morality "as such." Nonetheless, according to this the-
ory, once we grasp the truth that a society's morality is
P~cessary for its very existence, it becomes clear that any
immoral act, however private its performance, must in the
long run be harmful because "it threatens the moral prin-
ciples on which society is based" and so jeopardizes society's
existence. So on this view the enforcement of morality
(which is assumed to be required for its preservation) is

53
necessary for the very existence of society and is justified
for that reason.
The extreme thesis has many variants, and it is not al-
ways clear which of them its advocates are concerned to
urge. According to some variants, the legal enforcement of
morality is only of instrumental value: it is merely a means,
though an indispensable one, for preserving morality,
whereas the preservation of morality is the end, valuable
in itself, which justifies its legal enforcement. According
to other variants, there is something intrinsically valuable
in the legal enforcement of morality. What is common to
all varieties of the extreme thesis is that, unlike the moder-
ate thesis, they do not hold the enforcement of morality or
its preservation to be valuable merely because of their bene-
ficial consequences in securing the existence of society.
It is to be observed that Lord Devlin hovers somewhat
ambiguously between one form of the extreme thesis and
the moderate thesis. For if we interpret his crucial state-
ment that the preservation of a society's morality is neces-
sary for its existence as a statement of fact (as the analogy
with the suppression of treason suggests we should), then
the continued existence of society is something distinguish-
able from the preservation of its morality. It is, in fact, a
desirable consequence of the preservation of its morality,
and, on the assumption that the enforcement of morality
is identical with or required for its preservation, this de-
sirable consequence justifies the enforcement of morality.

54
So interpreted, Lord Devlin is an advocate of the moderate
thesis and his argument is a utilitarian one. The objection
to it is that his crucial statement of fact is unsupported by
evidence; it is Utilitarianism without benefit of facts. If,
on the other hand, we interpret his statement that any
immorality, even in private, threatens the existence of soci-
ety, not as an empirical statement but as a necessary truth
(as the absence of evidence suggests we should), then the
continued existence of a society is not something different
from the preservation of its morality; it is identical with it.
On this view the enforcement of morality is not justified
by its valuable consequences in securing society from dis-
solution or decay. It is justified simply as identical with or
required for the preservation of the society's morality. This
is a form of the extreme thesis, disguised only by the tacit
identification of a society with its morality which I criti-
cised in the last lecture.
Stephen is, I think, a more consistent defender of cer-
tain forms of the extreme thesis than Lord Devlin is of the
moderate one. But before we consider the argument it is
important to recall the complexities contained in the ap-
parently simple notion of the legal enforcement of any
kind of conduct. We have already distinguished two as-
pects of enforcement: the first is that of coercion and con-
sists in securing, by the threat of legal punishment, that
people do or abstain from doing what the law enjoins or
forbids; the second is that of the actual punishment of

55
those who have broken the law. Besides these forms of
enforcement there are others which it is important not to
overlook in considering the legal use of "force." Thus steps
may be taken which render disobedience to the law im-
possible or difficult, and so frustrate it rather than punish it.
An example of this well known in England is the power
given to officials by the Obscene Publications Act of 1857 to
seize and destroy obscene publications; and in some juris-
dictions the law authorises the physical closing of prem-
ises used as brothels. A further distinguishable aspect of
legal enforcement is the use of pressure to induce those
actually engaged in breaking the law or threatening to do
so to desist. The fact that the means of pressure used are
also used for punishment should not blind us to the differ-
ence. The most common form in England and America
of this method of enforcement is the imprisonment, until
they submit, of those who refuse to comply with a Court's
order, and the "cease and desist orders" under which a
daily-mounting fine is imposed as long as disobedience
lasts. No doubt the first of these is usually presented as a
form of punishment for "contempt of Court." An apology
as well as obedience to the Court is usually required to
terminate imprisonment for contempt, but its primary use
is as a form of pressure available to those interested in se-
curing compliance with the law.
These distinctions are important for present purposes,
because the extreme thesis that the legal enforcement of
morality is justified not by its consequences but as a value
in itself may need separate consideration with regard to
different aspects of enforcement. Moreover, reflection on
these different aspects will force us to question the assump-
tion, certainly made by Lord Devlin and possibly also by
Stephen, that the enforcement of a morality and its preser-
vation are identical or at least necessarily connected.
Enforcement as coercion.-I£ we consider the first as-
pect of enforcement, namely, coercion by threats, a very
great difference is apparent between inducing persons
through fear of punishment to abstain from actions which
are harmful to others, and inducing them to abstain from
actions which deviate from accepted morality but harm
no one. The value attached to the first is easy to under-
stand; for the protection of human beings from murder or
violence or others forms of injury remains a good what-
ever the motives are by which others are induced to abstain
from these crimes. But where there is no harm to be pre-
vented and no potential victim to be protected, as is often
the case where conventional sexual morality is disregarded,
it is difficult to understand the assertion that conformity,
even if motivated merely by fear of the law's punishment,
is a value worth pursuing, notwithstanding the misery and
sacrifice of freedom which it involves. The attribution of
value to mere conforming behaviour, in abstraction from
both motive and consequences, belongs not to morality but
to taboo. This does not mean that we cannot intelligibly

57
attribute value to lives dedicated to ideals of chastity or
self-denial. Indeed, the achievement of self-discipline not
only in sexual matters but in other fields of conduct must
on any theory of morality be a constituent of a good life.
But what is valuable here is voluntary restraint, not sub-
mission to coercion, which seems quite empty of moral
value.
It may of course be argued that, though for these reasons
legally enforced conformity is of no value in itself, it is yet
indispensable as a means of teaching or maintaining a mo-
rality which is for the most part practised voluntarily.
"The fact that men are hanged for murder is one great rea-
son why murder is considered so dreadful a crime.m There
is nothing self-contradictory in such theories that the threat
of legal punishment is required to create or maintain the
voluntary practice of morality. But these are theories re-
quiring the support of empirical facts, and there is very
little evidence to support the idea th'lt morality is best
taught by fear of legal punishment. Much morality is cer-
tainly taught and sustained without it, and where morality
is taught with it, there is the standing danger that fear of
punishment may remain the sole motive for conformity.
Enforcement as punishment.-The second aspect of
legal enforcement consists not in the threat but in the

1 Report of the Royal Commission on Capital Punishment (CMD

8932) s. 6r. The quotation is from Stephen's article on capital pun-

ishment in Fraser's Magazine, June r864, p. i6r.

ss
actual infliction of punishment on offenders. If we ask
what value this can have where the conduct punished is
not harmful, the most obvious answer is a retributive
"theory" of punishment: the claim that what justifies the
infliction of punishment is not that it has beneficial conse-
quences on society or on the person punished, but that pain
is morally the appropriate or "fitting" return for moral
evil done. I cannot here undertake a full-scale examina-
tion of this theory of punishment, but I will draw atten-
tion to one salient point. A theory which does not attempt
to justify punishment by its results, but simply as some-
thing called for by the wickedness of a crime, is certainly
most plausible, and perhaps only intelligible, where the
crime has harmed others and there is both a wrongdoer
and a victim. Even the most faithful adherents of utili-
tarian doctrine must have felt tempted at times to acknowl-
edge the simple claim that it is right or just that one who
has intentionally inflicted suffering on others should him-
self be made to suffer. I doubt if anyone, reading the rec-
ords of Auschwitz or Buchenwald, has failed to feel the
powerful appeal of this principle; perhaps even the most
reflective of those who supported the punishment of the
criminals concerned were moved by this principle rather
than- by the thought that punishment would have bene-
ficial future consequences. But the strength of this form
of retribution is surely dependent on there being a victim
as well as an offender; for where this is the case, it is pos-

59
sible to conceive of the punishment as a measure designed
to prevent the wrongdoer prospering whf'n his victims
suffer or have perished. The principles requiring this to
be done are certainly analogous to those of justice or fair-
ness in the distribution of happiness and suffering-prin-
ciples which permeate other areas of morality. I should not
myself argue that even this analogy is sufficient. Yet it is
certainly something which should prevent our dismissing
all retributive theory out of hand. But where there is no
victim but only a transgression of a moral rule, the view
that punishment is still called for as a proper return for
the immorality lacks even this support. Retribution here
seems to rest on nothing but the implausible claim that in
morality two blacks make a white: that the evil of suffer-
ing added to the evil of immorality as its punishment makes
a moral good.

RETRIBUTION AND DENUNCIATION

In his chapter on Mill's doctrine of liberty in relation

to morals Stephen was principally concerned to identify
and expose the inconsistencies and false assumptions about
human nature and society by which, as he believed, Mill's
arguments were vitiated. He devoted comparatively little
space to explaining the positive grounds for his own claim
that the criminal law should be used not only for protec-
tion "against acts dangerous to society" but as a "persecu-

6o
sible to conceive of the punishment as a measure designed
to prevent the wrongdoer prospering whf'n his victims
suffer or have perished. The principles requiring this to
be done are certainly analogous to those of justice or fair-
ness in the distribution of happiness and suffering-prin-
ciples which permeate other areas of morality. I should not
myself argue that even this analogy is sufficient. Yet it is
certainly something which should prevent our dismissing
all retributive theory out of hand. But where there is no
victim but only a transgression of a moral rule, the view
that punishment is still called for as a proper return for
the immorality lacks even this support. Retribution here
seems to rest on nothing but the implausible claim that in
morality two blacks make a white: that the evil of suffer-
ing added to the evil of immorality as its punishment makes
a moral good.

RETRIBUTION AND DENUNCIATION

In his chapter on Mill's doctrine of liberty in relation

to morals Stephen was principally concerned to identify
and expose the inconsistencies and false assumptions about
human nature and society by which, as he believed, Mill's
arguments were vitiated. He devoted comparatively little
space to explaining the positive grounds for his own claim
that the criminal law should be used not only for protec-
tion "against acts dangerous to society" but as a "persecu-

6o
tion of the grosser forms of vice." 2 It is not, indeed, easy
to disentangle from his arguments any very precise account
of the values which he thought the legal enforcement of
morality constituted or secured. The most prominent-
and to many the most distasteful-feature of his thought
on these matters is his general insistence on the legitimacy
or "healthiness" 3 of hatred or resentment for the criminal
and the desire for revenge on him. It is easy to conclude
from his emphasis on this theme that Stephen relies for his
positive case on a simple and indeed crude form of retribu-
tive theory: that punishment of the criminal is justified
because "the feeling of hatred and the desire of vengeance
are important elements in human nature which ought in
such cases to be satisfied in a regular public and legal
manner." 4
Stephen's insistence on the legitimacy of hatred and of
the wish for revenge is certainly central in his whole out-
look on punishment, and later English judges have at-
tached similar importance to them. The former Lord
Chief Justice of England, Lord Goddard, in the last de-
bate on capital punishment in the House of Lords, said,
"I do not see how it can be either non-Christian or other
than praiseworthy that the country should be willing to
avenge crime." 5 But it would not be fair to Stephen to
2 Liberty, Equality, Fraternity, p. 162.
3 Ibid., PP· I62, r6s. 4 Ibid., p. I62.

5 198 H.L. Debates (sth Series) 743 (1956).

6r
present this form of retributive theory as the whole of his
doctrine; for there is at least one other element woven into
his arguments. This I shall call, for reasons which will ap-
pear, the denunciatory element. Though Stephen himself
does not distinguish this from his own form of retributive
theory, it is worth isolating for scrutiny, because it figures
largely in the conception of the function and justification
of punishment which is even today characteristic of the
English judiciary and is shared by many conservative Eng-
lish and American lawyers.
It is important for the understanding of Stephen's views
on the legal enforcement of morality to notice that he, like
Lord Devlin, assumes that the society to which his doctrine
is to apply is marked by a considerable degree of moral
solidarity, and is deeply disturbed by infringements of its
moral code. Just as for Lord Devlin the morality to be en-
forced by law must be "public," in the sense that it is gen-
erally shared and identifiable by the triple marks of "in-
tolerance, indignation, and disgust," 6 so for Stephen "you
cannot punish anything which public opinion as expressed
in the common practice of society does not strenuously and
unequivocally condemn ... To be able to punish a moral
majority must be overwhelming.m It is possible that in
mid-Victorian England these conditions were satisfied in

6 The Enforcement of Morals, p. 17: "They are the forces be-

hind the moral law."
1 Liberty, Equality, Fraternity, pp. 173-74.
relation to "that considerable number of acts" which ac-
cording to Stephen were treated as crimes merely because
they were regarded as grossly immoral. Perhaps an "over-
whelming moral majority" then actually did harbour the
healthy desire for revenge of which he speaks and which
is to be gratified by the punishment of the guilty. But it
would be sociologically na"ive to assume that these condi-
tions obtain in contemporary England at least as far as
sexual morality is concerned. The fact that there is lip
service to an official sexual morality should not lead us to
neglect the possibility that in sexual, as in other matters,
there may be a number of mutually tolerant moralities,
and that even where there is some homogeneity of prac-
tice and belief, offenders may be viewed not with hatred
or resentment but with amused contempt or pity.
In a sense, therefore, Stephen's doctrine, and much of
Lord Devlin's, may seem to hover in the air above the terra
firma of contemporary social reality; it may be a well-
articulated construction, interesting because it reveals the
outlook characteristic of the English judiciary but lacking
application to contemporary society. But with this possibly
illusory picture of society in mind, Stephen sometimes
writes as if the function of punishment were not so much
retributive as denunciatory; not so much to gratify feel-
ings of hatred or revenge as to express in emphatic form
moral condemnation of the offender and to "ratify" the
morality which he has violated. This idea is present in
Liberty, Equality, Fraternity in a passage where Stephen
speaks of the criminal law giving "distinct shape to the
feeling of anger" as well as "distinct satisfaction to the de-
sire for vengeance." 8 The same idea is, however, more
elaborately and clearly expressed in his History of the
Criminal Law:
The sentence of the law is to the moral sentiment of
the public in relation to any offence what a seal is to
hot wax. It converts into a permanent final judgment
what might otherwise be a transient sentiment ...
In short the infliction of punishment by law gives
definite expression and solemn ratification and justifi-
cation to the hatred which is excited by the commission
of the offence and which constitutes the moral or popu-
lar, as distinct from the conscientious, sanction of that
part of morality which is also sanctioned by the crimi-
nal law.... The forms in which deliberate anger
and righteous disapprobation are expressed, and the
execution of criminal justice is the most emphatic of
such forms, stand to the one set of passions in the same
relation which marriage stands to the other [sexual
passions].9
There is no doubt much that is unclear in this theory; in
particular, Stephen speaks mysteriously of the punishment
"justifying" the feeling which it expresses. But its general
drift is clear, and it is a theme which later judges have

s P. 165.
9 A Histo1·y of the Criminal Law of England, II, 81-82.
echoed. Thus in our own day Lord Denning in his evi-
dence to the Royal Commission on Capital Punishment
said:
The punishment for grave crimes should adequately re-
flect the revulsion felt by the majority of citizens for
them. It is a mistake to consider the object of punish-
ment as being deterrent or reformative or preventive
and nothing else. The ultimate justification of any
punishment is not that it is a deterrent but that it is
the emphatic denunciation by the community of a
crime and from this point of view there are some mur-
ders which in the present state of opinion demand the
most emphatic denunciation of all, namely the death
penalty.10

Notwithstanding the eminence of its legal advocates,

this justification of punishment, especially when applied
to conduct not harmful to others, seems to rest on a strange
amalgam of ideas. It represents as a value to be pursued
at the cost of human suffering the bare expression of moral
condemnation, and treats the infliction of suffering as a
uniquely appropriate or "emphatic" mode of expression.
But is this really intelligible? Is the mere expression of
moral condemnation a thing of value in itself to be pur-
sued at this cost? The idea that we may punish offenders
against a moral code, not to prevent harm or suffering or
even the repetition of the offence but simply as a means of

10 Report of the Royal Commission on Capital Punishment, s. 53·

venting or emphatically expressing moral condemnation, is
uncomfortably close to human sacrifice as an expression of
religious worship. But even if we waive this objection an-
other remains to be faced. What is meant by the claim that
the punishment of offenders is an appropriate way of ex-
pressing emphatic moral condemnation? The normal way
in which moral condemnation is expressed is by wards, and
it is not clear, if denunciation is really what is required,
why a solemn public statement of disapproval would not
be the most "appropriate" or "emphatic" means of express-
ing this. Why should a denunciation take the form of
punishment?
It is, I think, probable that what the advocates of this
theory really mean by an "emphatic" denunciation and the
"appropriate" expression of moral condemnation is one
that is effective in instilling or strengthening in the
offender and in others respect for the moral code which
has been violated. But then the theory assumes a different
character; it is no longer the theory that the legal enforce-
ment of morality is a value apart from its consequences; it
becomes the theory that the legal enforcement of morality
is valuable because it preserves an existing morality. This
is no doubt the most plausible form of the extreme thesis.
But unless it is treated, as Stephen at times appears to treat
it, as intuitively obvious, to be accepted without argument
or appeal to any general principle of critical morality, it is
open to a variety of major criticisms.

66
 The first of these criticisms concerns a matter of fact
already mentioned: the assertion that legal enforcement
does operate in the manner supposed to maintain an ex-
istent social morality requires evidence in support, and at
least in relation to sexual morality there is little to be found.
No doubt the issues here are quite complex: in any full
investigation of the part played by legal prohibition in sus-
taining the conviction that conduct is morally wrong, we
should have to distinguish between various types of immo-
rality. Some, like fornication, though they may be quite
sincerely condemned morally, represent temptations to a
majority of men; others, such as incest or homosexuality,
are practices for which most men may feel aversion and
disgust. In relation to the latter, it would be very surpris-
ing if legal prohibition were a significant factor in pre-
serving the general sense that the practice is immoral. For
if there is on these matters what Lord Devlin calls general
"intolerance, indignation, and disgust" and Stephen calls
"an overwhelming moral majority" (and only where these
exist do they think legal punishment of immorality is jus-
tifiable), the conviction that such practices are morally
wrong is surely inseparable in the mind of the majority
from instinctive repulsion and the deep feeling that they
are "unnatural." The notion that the overwhelming moral
majority would or even could change heart morally and
shed these deep instinctive feelings, if the State did not
reflect in legal punishment their moral views on homo-
sexuality, seems fantastic and is quite at variance with the
experience of those countries where homosexuality be-
tween consenting adults in private is not legally punished.
Of course this is not to deny that where the law forbids
these practices there will be some who abstain from them
only from fear of punishment or because, in Stephen's
phrase, they respect the law's "solemn ratification" of ex-
istent social morals however much it frustrates their own
instincts. But their abstention on these grounds contributes
nothing to the general sense that these practices are mor-
ally wrong.
The real solvent of social morality, as one critic of Lord
Devlin has pointed out,11 is not the failure of the law to
endorse its restrictions with legal punishment, but free
critical discussion. It is this-or the self-criticism which it
engenders-that forces apart mere instinctive disgust from
moral condemnation. If in our own day the "overwhelm-
ing moral majority" has become divided or hesitant over
many issues of sexual morality, the main catalysts have
been matters to which the free discussion of sexual morals,
in the light of the discoveries of anthropology and psy-
chology, has drawn attention. These matters are very di-
verse: they include the harmless character of much sexual
deviation, the variety of different sexual moralities in dif-
ferent societies, the connection between restrictive sexual
morality and harmful repression. Though few now think
11 Wollheim, "Crime, Sin, and Mr. Justice Devlin," p. 40.

68
it justifiable to prohibit free discussion on account of its
impact on prevalent social morality, Stephen was well
aware that his general doctrine committed him to this. He
quite frankly stated that he had no objection to it in prin-
ciple but thought that when he wrote it was no longer
practicable.12

THE PRESERVATION OF MORALITY

AND MORAL CONSERVATISM

This last consideration brings us to what is really the

central issue in the extreme thesis. Let us suppose, con-
trary to much evidence, that Stephen's picture of society
and its moral mechanisms is a realistic one: that there
really is a moral code in sexual matters supported by an
overwhelming majority and that they are deeply disturbed
when it is infringed even by adults in private; that the
punishment of offenders really does sustain the sense that
the conduct is immoral and without their punishment the
prevalent morality would change in a permissive direction.
The central question is: Can anything or nothing be said
to support the claim that the prevention of this change and
the maintenance of the moral status quo in a society's mo-
rality are values sufficient to offset the cost in human mis-
ery which legal enforcement entails? Is it simply a blank
12 Liberty, Equality, Fraternity, Chapter 2, especially pp. 58, 81,
82-84.
it justifiable to prohibit free discussion on account of its
impact on prevalent social morality, Stephen was well
aware that his general doctrine committed him to this. He
quite frankly stated that he had no objection to it in prin-
ciple but thought that when he wrote it was no longer
practicable.12

THE PRESERVATION OF MORALITY

AND MORAL CONSERVATISM

This last consideration brings us to what is really the

central issue in the extreme thesis. Let us suppose, con-
trary to much evidence, that Stephen's picture of society
and its moral mechanisms is a realistic one: that there
really is a moral code in sexual matters supported by an
overwhelming majority and that they are deeply disturbed
when it is infringed even by adults in private; that the
punishment of offenders really does sustain the sense that
the conduct is immoral and without their punishment the
prevalent morality would change in a permissive direction.
The central question is: Can anything or nothing be said
to support the claim that the prevention of this change and
the maintenance of the moral status quo in a society's mo-
rality are values sufficient to offset the cost in human mis-
ery which legal enforcement entails? Is it simply a blank
12 Liberty, Equality, Fraternity, Chapter 2, especially pp. 58, 81,
82-84.
assertion, or does it rest on any critical principles connect-
ing what is said to be of value here with other things of
value?
Here certain discriminations are needed. There are
three propositions concerning the value of preserving so-
cial morality which are in perennial danger of confusion.
The first of these propositions is the truth that since all
social moralities, whatever else they may contain, make
provision in some degree for such universal values as in-
dividual freedom, safety of life, and protection from de-
liberately inflicted harm, there will always be much in
social morality which is worth preserving even at the cost
in terms of these same values which legal enforcement in-
volves. It is perhaps misleading to say with Lord Devlin
that social morality, so far as it secures these things, is of
value because they are required for the preservation of so-
ciety; on the contrary, the preservation of any particular
society is of value because among other things it secures
for human beings some measure of these universal values.
It is indeed arguable that a human society in which these
values are not recognised at all in its morality is neither an
empirical nor a logical possibility, and that even if it were,
such a society could be of no practical value for human be-
ings. In conceding this much, however, we must beware
of following Lord Devlin in thinking of social morality as
a seamless web and of all its provisions as necessary for the
existence of the society whose morality it is. We should
with Mill be alive to the truth that though these essential
universal values must be secured, society can not only sur-
vive individual divergences in other fields from its preva-
lent morality, but profit from them.
Secondly, there is the truth, less familiar and less easy
to state in precise terms, that the spirit or attitude of mind
which characterises the practice of a social morality is some-
thing of very great value and indeed quite vital for men to
foster and preserve in any society. For in the practice of
any social morality there are necessarily involved what may
be called formal values as distinct from the material values
of its particular rules or content. In moral relationships
with others the individual sees questions of conduct from
an impersonal point of view and applies general rules im-
partially to himself and to others; he is made aware of and
takes account of the wants, expectations, and reactions of
others; he exerts self-discipline and control in adapting his
conduct to a system of reciprocal claims. These are univer-
sal virtues and indeed constitute the specifically moral atti-
tude to conduct. It is true that these virtues are learnt in
conforming to the morality of some particular society, but
their value is not derived from the fact that they are there
accounted virtues. We have only to conduct the Hobbes-
ian experiment of imagining these virtues totally absent
to see that they are vital for the conduct of any cooperative
form of human life and any successful personal life. No
principles of critical morality which paid the least atten-
tion to the most elementary facts of human nature and the
conditions in which human life has to be led could pro-
pose to dispense with them. Hence if by the preservation
of morality is meant the preservation of the moral attitude
to conduct and its formal values; it is certainly true that it
is a value. But, though true, this is really irrelevant to the
issue before us; for the preservation of morality in this
sense is not identical with and does not require the preser-
vation from change of a society's moral code as it is at any
given moment of that society's existence; and a fortiori it
does not require the legal enforcement of its rules. The
moral attitude to conduct has often survived the criticism,
the infringement, and the ultimate relaxation of specific
mora] institutions. The use of legal punishment to freeze
into immobility the morality dominant at a particular
time in a society's existence may possibly succeed, but even
where it does it contributes nothing to the survival of the
animating spirit and formal values of social morality and
may do much to harm them.
From the preservation of morality in this sense which
is so clearly a value we must, then, distinguish mere moral
conservatism. This latter amounts to the proposition that
the preservation from change of any existent rule of a so-
cial morality, whatever its content, is a value and justifies
its legal enforcement. This proposition would be at least
intelligible if we could ascribe to all social morality the
status which theological systems or the doctrine of the Law
of Nature ascribes to some fundamental principles. Then,
at least, some general principle would have been adduced
to support the claim that preservation of any rule of social
morality was a value justifying its legal enforcement; some-
thing would have been said to indicate the source of this
asserted value. The application of these general principles
to the case in hand would then be something to be dis-
cussed and argued, and moral conservatism would then be
a form of critical morality to be used in the criticism of
social institutions. It would not then be-as it is when dis-
sociated from all such general principles-a brute dogma,
asserting that the preservation of any social morality neces-
sarily outweighs its cost in human misery and deprivation
of freedom. In this dogmatic form it in effect withdraws
positive morality from the scope of any moral criticism.
No doubt a critical morality based on the theory that
all social morality had the status of divine commands or
of eternal truth discovered by reason would not for obvious
reasons now seem plausible. It is perhaps least plausible in
relation to sexual morals, determined as these so obviously
are by variable tastes and conventions. Nonetheless, the
attempt to defend the legal enforcement of morality on
these lines would be something more than the simple un-
argued assertion that it was justified. It is worth observing
that great social theorists like Burke and Hegel, who were
among those most anxious to defend the value of the posi-
tive morality and customs of particular societies against

73
utilitarian and rationalist critics, never regarded the simple
assertion that these were things of value as adequate. In-
stead they deployed theories of human nature and of his-
tory in support of their position. Burke's principal argu-
ment, expressed in terms of the "wisdom of the ages" and
the "finger of providence," is in essence an evolutionary
one: the social institutions which have slowly been devel-
oped in the course of any society's history represent an ac-
commodation to the needs of that society which is always
likely to be more satisfactory to the mass of its members
than any ideal scheme of social life which individuals could
invent or any legislator could impose. For Hegel the value
of the established institutions of any particular society
rested on an elaborate metaphysical doctrine, not easily
comprehensible and certainly not capable of adequate state-
ment in the single sentence which I devote to it here. In
outline, it is the doctrine that the history of human soci-
eties is a process by which the Absolute Spirit manifests
itself and that each stage in this development is a rational
or even a logical step and so a thing of value.
However questionable this background of theory in any
particular case may be, it is yet there for rational criticism,
acceptance or rejection; it prevents the assertion of the
value of social institutions being ~erely dogmatic. The
assertion will stand or fall with the general theories de-
ployed in its support. It should, however, be remembered
that an evolutionary defence of tradition and custom such

74
as Burke made against the rationalist revolutionary or critic
affords little support for the enforcement by law of social
morality. In Burke, perhaps because he was a Whig, how-
ever conservative, the value of established institutions re-
sides in the fact that they have developed as the result of
the free, though no doubt unconscious, adaptation of men
to the conditions of their lives. To use coercion to main-
tain the moral status quo at any point in a society's history
would be artificially to arrest the process which gives social
institutions their value.
This distinction between the use of coercion to enforce
morality and other methods which we in fact use to pre-
serve it, such as argument, advice, and exhortation, is both
very important and much neglected in discussions of the
present topic. Stephen, in his arguments against Mill/ 3
seems most of the time to forget or to ignore these other
methods and the great importance which Mill attached to
them. For he frequently argues as if Mill's doctrine of
liberty meant that men must never express any convictions
concerning the conduct of their fellow citizens if that con-
duct is not harmful to others. It is true that Mill believed
that "the state or the public" is not warranted ((for the pur-
poses of repression or punishment"14 in deciding that such
conduct is good or bad. But it is not true that he thought
that concerning such conduct or "the experiments in liv-
13Liberty, Equality, Fraternity, pp. 126-42.
u Ibid., p. 137; On Liberty, Chapter 5·

75
ing" which it represents "no one else has anything to say
to it."'" Nor did he think that society could "draw a line
where education ends and perfect moral indifference be-
gins."10 In making these ill-founded criticisms Stephen not
only misunderstood and so misrepresented Mill, but he
showed how narrowly he himself conceived of morality
and the processes by which it is sustained. For Mill's con-
cern throughout his essay is to restrict the use of coercion,
not to promote moral indifference. It is true he includes
in the coercion or "constraint" of which he disapproves not
only legal enforcement of morality but also other peremp-
tory forms of social pressure such as moral blame and de-
mands for conformity. But it is a disastrous misunder-
standing of morality to think that where we cannot use
coercion in its support we must be silent and indifferent.
In Chapter 4 of his essay Mill takes great pains to show the
other resources which we have and should use:
It would be a great misunderstanding of this doctrine
to suppose that it is one of selfish indifference which
pretends that human beings have no business with each
others conduct in life and that they should not concern
themselves about the well-doing or well-being of one
another unless their own interest is involved .... Hu-
man beings owe to each other help to distinguish the
better from the worse and encouragement to choose the
former and avoid the latter.
15 Liberty, Equality, Fmternity, p. 141.
16 /bid., p. 170.
Discussion, advice, argument-all these, since they leave
the individual "the final judge," may according to Mill be
used in a society where freedom is properly respected. We
may even "obtrude" on another "considerations to aid his
judgment and exhortations to strengthen his will.m 7 We
may in extreme cases "warn" him of our adverse judg-
ment or feelings of distaste and contempt. We may avoid
his company and caution others against it. Many might
think that Mill here comes perilously near to sanctioning
coercion even though he regards these things as "strictly
inseparable from the unfavourable judgments of others"' 8
and never to be inflicted for the sake of punishment. But
if he erred in that direction, it is certainly clear that he
recognised the important truth that in morality we are not
forced to choose between deliberate coercion and indiffer-
ence.

MORAL POPULISM AND DEMOCRACY

Mill's essay On Liberty, like Tocqueville's book Democ-

racy in America, was a powerful plea for a clearheaded
appreciation of the dangers that accompany the benefits
of democratic rule. The greatest of the dangers, in their
view, was not that in fact the majority might use their
power to oppress a minority, but that, with the spread of
democratic ideas, it might come to be thought unobjec-

17 On Liberty, Chapter 4· 18 /bjJ,

77
Discussion, advice, argument-all these, since they leave
the individual "the final judge," may according to Mill be
used in a society where freedom is properly respected. We
may even "obtrude" on another "considerations to aid his
judgment and exhortations to strengthen his will.m 7 We
may in extreme cases "warn" him of our adverse judg-
ment or feelings of distaste and contempt. We may avoid
his company and caution others against it. Many might
think that Mill here comes perilously near to sanctioning
coercion even though he regards these things as "strictly
inseparable from the unfavourable judgments of others"' 8
and never to be inflicted for the sake of punishment. But
if he erred in that direction, it is certainly clear that he
recognised the important truth that in morality we are not
forced to choose between deliberate coercion and indiffer-
ence.

MORAL POPULISM AND DEMOCRACY

Mill's essay On Liberty, like Tocqueville's book Democ-

racy in America, was a powerful plea for a clearheaded
appreciation of the dangers that accompany the benefits
of democratic rule. The greatest of the dangers, in their
view, was not that in fact the majority might use their
power to oppress a minority, but that, with the spread of
democratic ideas, it might come to be thought unobjec-

17 On Liberty, Chapter 4· 18 /bjJ,

77
tionable that they should do so. For Mill, these dangers
were part of the price to be paid for all that is so valuable
in democratic government. He thought the price certainly
worth paying; but he was much concerned to remind the
supporters of democracy of the danger and the need for
vigilance. "The limitation of the power of government
over individuals loses none of its importance when the
holders of power are regularly accountable to the com-
munity-that is to the strongest party therein.m 9 So in-
sistent was Mill on this theme that, as Morley said, his
essay was in a sense "one of the most aristocratic books
that ever was written." 2° Certainly Mill's doctrine con-
trasts very sharply with the emphasis placed by Stephen
on the importance in moral matters of public opinion, and
on the function of punishment as an "expression of the
moral sentiment of the public." Morley indeed said, as
Stephen tells us in his Preface/ 1 that where Mill would
protect the minority from coercion by the majority, Ste-
phen's principles would expose them to it.,
Stephen repudiated Morley's charge, and it was perhaps
unfair. For though Stephen's disclaimer is not very easy
to reconcile with his insistence on the importance of "the
overwhelming moral majority," it may well be that his
complex position does not reduce to anything so simple as
19 On Liberty, Chapter 1.
20 Quoted in the Preface to Liberty, Equality, Fraternity, p. xv.
21 Ibid., p. xvii.
the view that a popular demand for coercion or legal pun-
ishment was justified simply because it was popular or the
cry of the majority. Nonetheless, Mill's fear that such a
doctrine might spread with democracy is surely justified.
It seems fatally easy to believe that loyalty to democratic
principles entails acceptance of what may be termed moral
populism: the view that the majority have a moral right
to dictate how all should live. This is a misunderstanding
of democracy which still menaces individual liberty, and I
shall devote the remainder of this lecture to identifying
the confusion on which it rests. 22
The central mistake is a failure to distinguish the ac-
ceptable principle that political power is best entrusted to
the majority from the unacceptable claim that what the
majority do with that power is beyond criticism and must
never be resisted. No one can be a democrat who does not
accept the first of these, but no democrat need accept the
second. Mill and many others have combined a belief in
22 There are vestiges of this confusion in Lord Devlin's latest

contribution to the present topic ("Law, Democracy, and Morality,"

Zoe. cit.). For he there (p. 639) asserts that "in a democracy a legis-
lator will assume that the morals of his society are good and true;
if he does not he should not be playing an active part in govern-
ment. . . . But he has not to vouch for their goodness and truth.
His mandate is to preserve the essentials of his society, not to re-
construct them according to his own ideas." But elsewhere (p. 644)
he concedes that a legislator "has a very wide discretion in deter-
mining how far he will go in the direction of the law as he thinks
it ought to be." Lord Devlin's main concern in this essay is to estab-

79
a democracy as the best-or least harmful-form of rule
with the passionate conviction that there are many things
which not even a democratic government may do. This
combination of attitudes makes good sense, because, though
a democrat is committed to the belief that democracy is
better than other forms of government, he is not commit-
ted to the belief that it is perfect or infallible or never to
be resisted. To support this last conclusion we need a fur-
ther premise, going far beyond the simple assertion that it
is better to entrust political power to the majority than to
a selected class. This further premise must be some variant,
secular or otherwise, of the identification of vox populi
with vox Dei. One variant, which has been frequently re-
ferred to in these lectures, is the view that positive morality
supported by an overwhelming moral majority is immune
from criticism.
It is not, of course, surprising that these confusions have
been made or that they survive even in democracies like
the United States, where the rights of individuals are pro-

Iish against "the view of the philosophers" (sic) that there is no

objection to morality being a matter for the popular vote (p. 642),
that morality is a question of fact (p. 649), and that in a democracy
"educated men cannot be put in a separate category for the de-
cision of moral questions" (p. 643). But as far as positive morality
is concerned, few would dispute these contentions. The question
remains: What justifies its enforcement by law? As to that, Lord
Devlin seems content with his previous arguments and his analogy
with treason, criticised above.

So
tected to some extent from majorities by a written consti-
tution; or in England, where for long the elected member
of Parliament has been considered to be the representative
but not the delegate of his constituents. For there are in
the actual working of democracy many forces likely to
encourage the belief that the principle of democratic rule
means that the majority are always right. Even the most
high-minded politician may want to stay in office, and a
pliant or passive attitude to what the majority thinks right
makes this easier than a stern adherence to the theory that
his duty is to do what he thinks right, and then to accept
his dismissal if he cannot persuade the majority to retain
him. But what is understandable as a temptation to elected
legislators may yet be regretted in those not under a similar
temptation. Whatever other arguments there may be for
the enforcement of morality, no one should think even
when popular morality is supported by an "overwhelming
majority" or marked by widespread "intolerance, indigna-
tion, and disgust" that loyalty to democratic principles re-
quires him to admit that its imposition on a minority is
justified.

CONCLUSION

I hope that these three lectures are clear enough and

short enough to make a detailed summary unnecessary.
Instead I shall say a word in conclusion about the method
of argument which I have followed. I have from the be-

8r
tected to some extent from majorities by a written consti-
tution; or in England, where for long the elected member
of Parliament has been considered to be the representative
but not the delegate of his constituents. For there are in
the actual working of democracy many forces likely to
encourage the belief that the principle of democratic rule
means that the majority are always right. Even the most
high-minded politician may want to stay in office, and a
pliant or passive attitude to what the majority thinks right
makes this easier than a stern adherence to the theory that
his duty is to do what he thinks right, and then to accept
his dismissal if he cannot persuade the majority to retain
him. But what is understandable as a temptation to elected
legislators may yet be regretted in those not under a similar
temptation. Whatever other arguments there may be for
the enforcement of morality, no one should think even
when popular morality is supported by an "overwhelming
majority" or marked by widespread "intolerance, indigna-
tion, and disgust" that loyalty to democratic principles re-
quires him to admit that its imposition on a minority is
justified.

CONCLUSION

I hope that these three lectures are clear enough and

short enough to make a detailed summary unnecessary.
Instead I shall say a word in conclusion about the method
of argument which I have followed. I have from the be-

8r
ginning assumed that anyone who raises, or is willing to
debate, the question whether it is justifiable to enforce
morality, accepts the view that the actual institutions of
any society, including its positive morality, are open to
criticism. Hence the proposition that it is justifiable to
enforce morality is, like its negation, a thesis of critical
morality requiring for its support some general critical
principle. It cannot be established or refuted simply by
pointing to the actual practices or morality of a particular
society or societies. Lord Devlin, whose thesis I termed
the moderate thesis, seems to accept this position, but I
have argued that the general critical principle which he
deploys, namely, that a society has the right to take any
step necessary for its preservation, is inadequate for his
purpose. There is no evidence that the preservation of a
society requires the enforcement of its morality "as such."
His position only appears to escape this criticism by a con-
fused definition of what a society is.
I have also assumed from the beginning that anyone
who regards this question as open to discussion necessarily
accepts the critical principle, central to all morality, that
human misery and the restriction of freedom are evils; for
that is why the legal enforcement of morality calls for jus-
tification. I then endeavoured to extricate, and to free from
ambiguity of statement, the general principles underlying
several varieties of the more extreme thesis that the en-
forcement of morality or its preservation from change were
valuable apart from their beneficial consequences in pre-
serving society. These principles in fact invite us to con-
sider as values, for the sake of which we should restrict
human freedom and inflict the misery of punishment on
human beings, things which seem to belong to the pre-
history of morality and to be quite hostile to its general
spirit. They include mere outward conformity to moral
rules induced simply by fear; the gratification of feelings
of hatred for the wrongdoer or his "retributory" punish-
ment, even where there has been no victim to be avenged
or to call for justice; the infliction of punishment as a sym-
bol or expression of moral condemnation: the mere insu-
lation from change of any social morality however repres-
sive or barbarous. No doubt I have not proved these things
not to be values worth their price in human suffering and
loss of freedom; it may be enough to have shown what it
is that is offered for the price.
 SELECTED BIBLIOGRAPHY

GENERAL

Anon. "The Censor as Aedile," Times Literary Supplement,

August 4, 1961.
Devlin, Lord. The Enforcement of Morals. Maccabaean Lec-
ture in Jurisprudence of the British Academy, 1959. Ox-
ford: Oxford University Press, 1959·
- - . "Law, Democracy, and Morality," 110 University of
Pennsylvania Law Review 635 (1962).
Hart, H. L.A. "Immorality and Treason," The Listener, July
30, 1959· p. 162.
--."The Use and Abuse of the Criminal Law," 4 Oxford
Lawyer 7 ( 1961).
Hughes, Graham. "Morals and the Criminal Law," 71 Yale
Law Journal662 (1962).
Mill, John Stuart. On Liberty. London, 1859.
Rostow, Eugene. "The Enforcement of Morals," Cambridge
Law Journal 174 (1960).
Stephen, James Fitzjames. Liberty, Equality, Fraternity. Lon-
don, 1873· The Preface to the second edition of 1874 is a
reply to Morley's defence of Mill in "Mr. Mill's Doctrine of
Liberty," Fortnightly Review, August 1, 1873-
Stephen, James Fitzjames. A History of the Criminal Law of
England. London, 1883. Volume II, Chapter 17.
Wollheim, Richard. "Crime, Sin, and Mr. Justice Devlin,"
Encounter, November 1959, p. 34·

LEGAL MATERIAL

American Law Institute, Model Penal Code, Tentative Draft

No. 4• 1955·
Davies, D. Seaborne. "The House of Lords and the Criminal
Law," Journal of the Society of Public Teachers of Law
(1961), p. 104.
Goodhart, A. L. "The Shaw Case: The Law and Public Mor-
als," 77 Law Quarterly Review 567 ( I96I).
Jones v. Randall (1774). Lofft. 383.
Report of the Committee on Homosexual Offences and Prosti-
tution (CMD 247) 1957 (The Wolfenden Report).
Shaw v. Director of Public Prosecutions (1961) 2 A.E.R. 446
(1962) A.C. 220.
Williams, Glanville. "Conspiring to Corrupt," The Listener,
August 24, 1961, p. 275·
Williams, J. E. Hall. "The Ladies Directory and Criminal Con-
spiracy," 24 Modern Law Review 631 (1961).

86
 INDEX

Adultery, 26, 27 Divine commands, 23, 73

American law, 7, 25, 26-27, Enforcement of morals, 4-6, I7-
39 n., 8o I8, 2I, 25-27, 29, 30-34, 48
American Law Institute Model ad fin.
Penal Code, I 5, 40 Fornication, 26-27, 67
Animals: cruelty to, 34 Goddard, Lord, 6I
Bentham, Jeremy, 4, I2 Hand, Learned, I 5
Bigamy, 38-43 Harm, 4' 5, 42, 46, 47
Blasphemy, 44 Hegel, G. W. F., 73-74
Burke, Edmund, 73-75 Homosexuality, 9, I3-14, 45,
California, 7, 26-27 52, 6?-68
Capital punishment, 58, 6I, 65 Indecency, 38-48
Coercion, 2 I, 57-58 Justice, 3, 37, 6o
Consent of victim of crime, 30- Justification, 20-2I, 82
34 Justinian, 50
Conspiracy to corrupt public Kelsen, Hans, 3
morals, 6-I2 Lawrence, D. H., IO
Democracy, 77-8r. See also Ma- Liberty, 2I, 22, 46-48
jority opinion Los Angeles, 27
Denning, Lord, 65 Majority opinion, 62-63, 67-68,
Denunciation, 63-66, 83 n-8r
Devlin, Lord, I6, I8-I9, 20 n., Mansfield, Lord, 7, 9
28-32, 34> 38, 4I, 48, 49-52, Mill, J. s., 4-6, I4-I8, 27-33> 42,
54, 55, 57, 67, 70, 79 n. 46, 71, 75-77, 78-79
Morality: and law, 1-4; critical, Rostow, E. V., 38, 42 n.
I7, I9-20, 2I, 24, 7I, 73· 82; Sexual morality, 5, 6, I8, 22, 25-
positive, I7, 20, 24, 82; value 27, 67-69. See also Adultery;
of, I9, 7o-74, 83 Bigamy; Fornication; Homo-
Morley, J., 28, 78 sexuality; Indecency
Natural Law, 2, 23, 73 Shaw v Director of Public Pros-
Obscenity, Io-u ecutions, 7-12, 25, 44
Paternalism, 30-34, 38 Simonds, Lord, 9, 44
Polygamy, 38 Stephen, J. F., I6, 28, 34-38, 48,
Positivism, 2 55, 57, 6o-64, 67, 69, 75-79
Prostitution, 8, 1I, 13, I4, 26, 45 Tocqueville, Alexis de, 77
Punishment: gradation of, 34- Utilitarianism, 4, 20, 22, 23, 24,
38, 58-6o. See also Denuncia- 37· 46-47· 55
tion; Enforcement of morals; Utility, 4
Justification; Retribution Wolfenden Committee: Report
Reid, Lord, 8, IO of, I3-I5, I6, 42
Retribution, 58-6I, 83 W ollheim, R., 5 I, 68

88