LAW, LIBERTY, and MORALITY TliE HARRY CAMP LECTURES AT STANFORD UNIVERSITY 1962 r LAW, LIBERTY AND MORALITY L H. A. Hart STANFORD UNIVERSITY PRESS StanfordUniversityPress Stanford,California © 1963 bytheBoardofTrusteesofthe LelandStanfordJuniorUniversity Printed intheUnitedStatesofAmerica Cloth ISBN 0-8047-0153-9 Paper ISBN 0-8047-0154-7 Firstpublished 1963 Lastfigurebelowindicatesyearofthisprinting: 79 78 77 76 75 THE HARRY CAMP LECTURES The Harry Camp Memorial Fund was established in 1959 to make pos- siblea continuingseries oflectures at Stanford University on topics bear- ing on the dignity and worth of the human individual. r 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,60 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- eratedwhenlawand morals arementioned 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 distinguishingfour 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 formerquestion. These exhibit the manifold ways in which morahty 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 toutterthewarningthatthe affirmative answerwhich 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 questionmaybecalled 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 theircommon proscription ofcertainformsof 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 ofgrand 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, toolittle has been said about the criteria for judg- ingthe adequacy ofa definition oflaw. Should such a defi- nition statewhat,ifanything, the plain man intends tocon- 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^ 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 ^ Hans Kelsen, General Theory of Law and Siate, pp. 374-76, 407-10.