Morality and the Criminal Law: Reflections on Hart-Devlin J. Paul McCutcheon* I The relationship between law and morality represents a major theme in jurisprudence and is the subject-matter of this article. I shall focus on the use of the criminal law to enforce morality and, in particular, I shall consider whether an identi fiable line can be drawn between moral standards that may properly be the subject of legal enforcement and those that may not. This issue was, of course, central to the Hart-Devlin debate. The immediate catalyst to that debate was the publica tion in Britain of the Report of the Wolfenden Committee I which, among other things, recommended that male homosex ual conduct be decriminalized. The debate broadly echoed that conducted in the 19th century between the great political philosopher John Stuart Mill and Sir James Fitzjames Stephen, who was arguably the pre-eminent criminal law judge in late Victorian England.2 In broad outline Mill, Hart and the Wolfenden Committee advocated the liberal cause while Stephen and Devlin are generally seen as legal moralists. In the heady days of the 1960s, and perhaps for many years after wards, Hart was largely thought to have had the better of the * School of Law, University of Limerick, Ireland. This is a revised version of the Lansdowne Lecture delivered at the University of Victoria, British Columbia, February 5, 2002. I. Report of the Committee on Homosexual Offences and Prostitution (HMSQ, 1957) Cmnd 257. 2. See R.A. Samek, ''The Enforcement of Morals: a Basic Re-examination in its Historical Setting" (1971), 49 Can. Bar Rev. 188. 15 16 Criminal Law Quarterly [Vol. 47 debate, to have trumped Devlin's supposedly outmoded, superstitious (and let it be said religiously inspired) conser vatism with a convincing statement of liberal and secular prin ciples that best reflected the values of personal autonomy. However, with the passage of time things do not seem so clear cut and I shall suggest that for all its flaws there is something of merit in Devlin's argument and that it offers insights we should not ignore. The question that arises is whether the law should be used to enforce a particular view of morality, a matter that has been the focus of debate between liberal and conservative commen tators. Mill trenchantly set out the liberal case in his celebrated essay On Liberty. He wrote that "the sole end for which mankind are warranted, individually or collectively, in inter fering with the liberty of action of any of their number is self protection".3 Accordingly, he argued that the right to limit individual freedom is restricted:4 the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. 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. Thus Mill would confine the power of the state to regulate to cases where harm to others is threatened, the so-called "harm principle". It is clear that he would deny the state the right to act paternalistically, on a view of what is in the best interests of its citizens. Equally, the state is not entitled to enforce a code of morality (unless the relevant regulation can be inde pendently justified on the grounds of harm prevention). However, Mill qualified these views. The principle of liberty applies to those who are in "the full maturity of their facul ties"S and it followed that the liberty of children could properly be restricted in their own best interests. By analogy, the same 3. On Liberty (Penguin Classics, 1974), p. 68. 4. Ibid. 5. Ibid., at p. 69. 2002] Morality and the Criminal Law 17 consideration would apply to other categories, such as the mentally incompetent, who lack "the full maturity of their fac ulties". This protection is sometimes thought of as "soft pater nalism" but it must be distinguished from the paternalism that Mill condemned.6 Despite these qualifications Mill's "simple principle" has been widely endorsed and has become a slogan for the liberal cause. Writing as a political philosopher Mill did not draw a dis tinction between legal and moral sanctions: his work discussed the legal and moral restraints that may be imposed on individ ual liberty. On the other hand, the principal interest of his adversary Stephen was with the contents of the criminal law. 7 Stephen contended that part of the law's purpose was to grat ify "the feeling of hatred" that the prospect of criminal conduct stimulates in the minds of right thinking people. He recognized that the criminal law was concerned with the "grosser forms of vice" and lesser forms, "mere vice", fell beyond its remit. In this his views were not substantially different from those of Mill, and in the modem idiom would be accommodated within the principle of minimalism that is said to circumscribe the criminallaw.8 However, Stephen took the view that the crimi nal law as it existed at the time "could hardly be regarded as imposing any restraint on decent people which is ever felt as such".9 In other words, the range of prohibitions that the crim inal law imposed at that time could not properly be considered to amount to an inappropriate restriction of personal freedom. In his view, a number of factors could properly shape the crim inal law, including the moral climate in which it operates, a concern for the "incurable weakness of human nature" and societal revulsion at the "grosser forms of vice". These factors 6. It might be noted that application of Mill's hann principle was confined to "advanced" nations; the situation of "those backward states of society" was equated with an individual's lack of capacity. He wrote that "[d]espotism is a legitimate mode of government in dealing with barbarians provided the end be their improvement". 7. Liberty, Equality, Fraternity (Chicago: University of Chicago Press, 1991). 8. See Ashworth, Principles of Criminal Law, 3rd ed. (Oxford: Oxford University Press, 1999), pp. 33-37. 9. Liberty, Equality, Fraternity, supra, footnote 7, at p 144. 18 Criminal Law Quarterly [Vol. 47 do not provide as apparently clear-cut a criterion as Mill's harm principle, but instead they operate as broad guidelines to the proper limits of the criminal law. Stephen's confidence in the state of the criminal law as it existed in late-Victorian England might now strike us as being astonishingly compla cent and his robust Christianity and arguably elitist viewslO are hardly in tune with the secular and democratic spirit of this age. II The Hart-Devlin debate was stimulated by the publication, in 1957, ofthe Report of the Wolfenden Committee, which rec ommended the decriminalization of male homosexual conduct and the regulation of prostitution-related activities. The back ground to the debate was completed by the decision several years later in Shaw v. Director of Public Prosecutionsll in which the House of Lords held conspiracy to corrupt public morals was an offence known to the law. To support its case for the liberalization of the law the Wolfenden Committee invoked the harm principle and suggested that there is a realm of private conduct that is "in brief and crude terms not the law's business". In Shaw the House of Lords took a different tack and argued that one of the functions of the criminal law was to protect the public moral welfare: to this end, Viscount Simonds opined that the courts enjoyed a residual power to recognize or create new offences where this course of action was demanded by the interests of public morality. Devlin took issue with the central proposition in the Wolfenden Report.12 He acknowledged that the harm principle .could explain the core prohibitions of the criminal law (such as murder, rape, assault, theft) but, in his view, that principle is 10. See Uberty, Equality, Fraternity, ibid., at p. 32: "We agree that the minority are wise and the majority foolish, but Mr Mill denies that the wise minority are ever justified in coercing the foolish majority, whereas I affirm that under circum stances they may be justified in doing so ... in my opinion the wise minority are the rightful masters of the foolish majority". 11. [1962] A.C. 220. 12. The Enforcement of Morals (Oxford: Oxford University· Press, 1965). 2002] Morality and the Criminal lAw 19 not the sole criterion. He contended that that principle does not explain the criminalization of consensual conduct which by its nature does not cause harm to others and to this end he referred, inter alia, to the prohibition of voluntary euthanasia, suicide pacts, duelling, abortion and sibling incest. Those are acts which can "be done in private and without offence to oth ers and need not involve the corruption or exploitation of oth ers ... [t]hey can be brought within [the criminal law] only as a matter of moral principle".\3 To Devlin a sense of public morality is vital to the integrity of society. On this view a shared moral perspective is the cement that holds society together and a dislodging of public morality threatens the structure of society itself: 14 society means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist ... If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought . . . A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society must pay its price. Devlin went further and stated that "[m]orals and religion are inextricably linked" and that "the moral standards of Western civilization are those belonging to Christianity". 15 However, it should be emphasized that he did not contend that Christian morals should be enforced in their own right through the mechanism of the criminal law; in this respect he was no theocrat. He made a more subtle point: for the purposes of the criminal law there was no discernible difference between "Christian morals and those which every right minded member of society is expected to hold" He was also careful to ensure .16 that this notion of public morality would not become a vehicle 13. Ibid., at p. 7. 14. Ibid. ,at p. 10. 15. Ibid., at p. 4. 16. Ibid., at p. 23. Devlin also expressed the view that the "free-thinker and non Christian" could accept that Christian morality formed the basis of the criminal law. 20 Criminal Law Quarterly [Vol. 47 for needless intolerance. The individual has rights which should be taken into account and "[n]othing should be pun ished by the law that does not lie beyond the limits of toler ance".17 In this respect he drew a distinction between conduct that is disliked by the majority and a "real feeling of reproba tion". Prohibition should be based on the latter not the former and the task of the lawmaker is to identify the boundary between the two. He recognized that the limits of tolerance shift, thus acknowledging that conceptions of public morality evolve and develop. However, "[n]ot everything is to be toler ated. No society can do without intolerance, indignation, and disgust; they are the forces behind the moral law ..." }S The liberal viewpoint was articulated by Hart who took Mill's dictum as his starting point.19 However, he qualified this by accepting that it is permissible to legislate in order to pro tect the vulnerable from exploitation. In his view the rules that exclude the victim's consent in murder and assault can be explained as exercises in legal paternalism "designed to pro tect individuals against themselves".20 This marks a significant departure from the position suggested by the harm principle, as Hart indeed recognized, but he contended that paternalist reg ulation is an accepted fact of social life. The core of Hart's the sis is that society cannot be identified with a particular set of views on morality, a point that is at odds with Devlin's central theme. Moreover, he drew a distinction between questions of morality and of public decency, accepting that the law might appropriately prohibit conduct on the basis that it offends pub lic decency. He noted, for instance, that sexual conduct that is generally permissible becomes an affront to public decency if it takes place in public.21 However, true to his liberal beliefs he 17. Ibid., at pp. 16-17. 18. Ibid., at p. 17. 19. Law, Liberty and Morality (Oxford: Oxford University Press, 1963). 20. Ibid., at p. 31. 21. Ibid., at p. 45: "Sexual intercourse between husband and wife is not immoral, but if it takes place in public it is an affront to public decency. Homosexual inter course between consenting 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." 2002] Morality and the Criminal Law 21 rejected the notion that conduct might be prohibited on the ground that mere knowledge of its occurring might cause shock or offence to others:22 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 dis tress 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 is plainly nugatory. Recognition of individual liberty as a value involves, as a minimum, acceptance of the principle that the individual may do what he wants, even if others are distressed when they learn what it is 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. III The enforcement of sexual morality was its immediate con text but the general terms in which the Hart-Devlin debate was conducted show that its scope is much broader and it is rele vant to other forms of private behaviour: drug-taking, private use of pornographic material, gambling and animal cruelty are examples. A number of justifications might be invoked in sup port of prohibiting these activities, including a paternalistic determination of what is in an individual's best interests, pub lic decency, public sentiment, feelings of revulsion or disgust as well as public morality. However, it is difficult to bring pro hibition in these cases within the harm principle, at least as it was classically articulated by Mill: the conduct in question occurs in private and does not "harm" others. Similar consid erations arise in relation to laws that require the wearing of seat belts and crash helmets. Nevertheless, such is the endur ing ideological appeal of the harm principle that it is frequently invoked to justify prohibitions. Thus it is said that drug-taking harms society in that drug users are liable to become a charge on the public purse: as a result of their conduct it is likely that 22. Ibid., at p. 47 (emphasis added). 22 Criminal Law Quarterly [Vol. 47 they will rely on publicly funded health and social welfare programmes and that this is a type of indirect harm that is properly a matter of societal concern. However, even if this is the case it does not necessarily follow that the use of the crim inallaw is appropriate. Other measures that have a less restric tive impact on individual liberty might be employed such as taxation, the withdrawing of entitlements to public assistance or the placing of the costs of such conduct on the individuals who engage in them. I express no particular opinion on this point but it seems to me that those who derive their views from Mill have a case to answer. By the same token, the harm prin ciple has been invoked in support of the imposition of stricter prohibitions of pornographic and violent literature, films and videos: a link is said to exist between exposure to such mate rials and violence against women and children. These efforts to justify the various prohibitions in terms of harm stretch the principle to such an extent that the reworked concept of harm 23 becomes nebulous. Hart implicitly acknowledged this diffi culty in his qualified adoption of Mill's proposition and his recognition that grounds other than harm, including paternal ism and public decency, might justify legal prohibition. However, it should be noted that other liberal theorists would eschew paternalism as a permissible rationale. A further diffi culty that Hart and others tend to overlook is that the concept of harm itself, as MacCormick has observed, is "morally loaded".24 The decision to classify a consequence as "harm" with a view to its prohibition involves a societal judgment that is essentially moral in nature. It runs into claims of individual liberty and the reasons that are accepted as being sufficient to limit that freedom will depend on the decision-maker's evalu ation of the competing normative propositions that are advanced. 23. See Harcourt, 'The Collapse of the Harm Principle' (1999), 90 J. Crim. L. & Criminology 109; Ashworth, Principles of Criminal Law, supra, footnote 8, at pp.44-45. 24. N. McCormick, Legal Right and Social Democracy (Oxford: Oxford University Press, 1982), p. 29. 2002] Morality and the Crimina/lAw 23 Hart's thesis became the prevailing orthodoxy of the 1960s~ and it still enjoys the ringing endorsement of commentators and theorists. Joel Feinberg took up the liberal cause in his four-volume work The Moral Limits o/the Criminal LaW.26 He adopted the harm principle as it was articulated by Mill but would add the causing of offence to others, what he termed the 27 "offence principle", as a justification for criminalization. However, he contended that paternalism and moralism could not properly be invoked in support of penalizing conduct. IV As matters transpired the years following the Hart-Devlin debate witnessed a general liberalization of the criminal law, especially in regard to matters that might be considered to lie within the domain of private morality. This was achieved both by the enactment of reforming legislation and by judicial means, the latter in the form of recognizing constitutional rights of privacy. In Britain, suicide and male homosexual con duct had been decriminalized and abortion legalized by the end of the 1960s. In the United States, the Supreme Court held in a series of decisions that the right of privacy protected, inter alia, the use of pornographic materials in the home,28 the use of contraceptives by married couples;29 and in Roe v. Wade, a famous and still controversial decision, it held that the right included the right to terminate a pregnancy. These develop 30 ments might be taken to amount to an endorsement of liberal 25. Lee, Law and Morals (Oxford: Oxford University Press, 1986), p. 28. 26. Harm to Others (Oxford: Oxford University Press, 1984); Offense to Others (Oxford: Oxford University Press, 1985); Harm to Self (Oxford: Oxford University Press, 1986); Harmless Wrongdoing (Oxford: Oxford University Press, 1990). 27. Alexander, "Hann, Offense, and Morality" (1994), 7 Can. J. Law & Juris. 199 has argued that there is little difference between the offence principle, as articulated by Feinberg, and legal moralism: "the Offense Principle covers most of the terri tory that Legal Moralism might otherwise occupy" (ibid., at p. 213). 28. Stanley v. Georgia, 394 US 557 (1969). 29. Griswold v. Connecticut, 381 US 479 (1965). 30. Roe v. Wade, 410 US 113 (1973). 24 Criminal Law Quarterly [Vol. 47 thesis and a corresponding rejection of that associated with Devlin. However, the foregoing catalogue does not paint the full picture and examples abound of liberty limiting laws that seem to rest on considerations of morality. The American and Irish Supreme Courts have held that constitutional rights of privacy do not invalidate laws that penalize male homosexual conduct. In Bowers v. Hardwick31 the majority of the U.S. court held that it was constitutionally permissible to base laws on what are essentially moral choices. In the Irish case, Norris v. Attorney General,32 the majority reinforced broadly similar reasoning by alluding to the condemnation of homosexual conduct by Christian teaching as being "gravely sinful". My point is not whether those decisions were convincing; in fact I believe that they were flawed and find the reasoning unper suasive. What is significant for present purposes is that moral considerations, or perhaps more accurately what the courts in those cases thought were moral considerations,33 prevailed over arguments from autonomy. Individual liberty is also compromised by an array of laws that do not seem to be based on considerations of harm (or, for that matter, paternalism) but are better explained as resting on moral rationales. Examples include laws that prohibit consen sual adult incest, bestiality, animal cruelty and (in various American states) fornication, adultery and necrophilia, as well as consensual killing and injuring. These counter-examples do not amount to a negation of the liberal case but at the least they call for comment. One plausible answer from the liberal per- 31. 478 US 186 (1986). -32. [1984] IR 36. The European Court of Human Rights later ruled that the measure violated the plaintiffs right under the European Convention of Human Rights: Norris v.lreland (1988). 13 EHRR 186. Homosexuality was eventually decrimi nalized: Criminal Law (Sexual Offences) Act 1993. 33. See Murphy, "Moral Reasons and the Limitation of Liberty" (1999), 40 Wm. and Mary L. Rev. 947 at p. 952, suggesting that the U.S. court failed to consider three vital questions that arise in relation to a claim that moral conviction may justify a criminal law: (i) did a majority of the citizens in fact disapprove of the practice in question; (ii) if so, was that disapproval moral in nature; and (iii) if the disap proval is moral in nature, is it rational or reasonable.