From THE LISTENER, published weekly by the British Broadcasting Company, London

Immorality and Treason

By H. L. A. HART

HE Wolfenden Committee on Homosexual Offences and Prostitution recommended by a majority of 12 to 1 that homosexual behaviour between consenting adults in private should no longer be a criminal offence. One of the Committee's principal grounds for this recommendation was expressed in its report in this way: 'There must remain a realm of private morality and immorality which in brief and crude terms is not the law's business'. I shall call this the liberal point of view: for it is a special application of those wider principles of liberal thought which John Stuart Mill formulated in his essay on Liberty. Mill's most famous words, less cautious perhaps than the Wolfenden Committee's, were:

The only purpose for which power can be rightfully exercised over any member of a civilized 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 in the opinion of others to do so would be wise or even right.

Repudiation of the Liberal Point of View

The liberal point of view, has often been attacked, both before and after Mill. I shall discuss here the repudiation of it made by Sir Patrick Devlin, in his recent lecture, which has now been published*. This contains an original and interesting argument designed to show that 'prima facie society has the right to legislate against immorality as such' and that the Wolfenden Committee were mistaken in thinking that there is an area of private immorality which is not the law's business. Sir Patrick's case is a general one, not confined to sexual immorality, and he does not say whether or not he is opposed to the Wolfenden Committee's recommendation on homosexual behaviour. Instead he gives us a hypothetical principle by which to judge this issue. He says: If it is the genuine feeling of our society that homosexuality is a vice so abominable that its mere presence is an

The Enforcement of Morals. Proceedings of the British Academy: Maccabean Lecture in Jurisprudence (Oxford, 38. 6d.) mattachine REVIEW

offence', society has the right to eradicate it by the use of the criminal law.

The publication by Sir Patrick of this lecture is in itself an interesting event. It is many years since a distinguished English lawyer delivered himself of general reasoned views about the relationship of morality to the criminal law. The last to do so with comparable skill and clarity was, I think, the great Victorian judge James Fitzjames Stephen. It is worth observing that Stephen, like Sir Patrick, repudiated the liberal point of view. Indeed his gloomy but impressive book Liberty, Equality, Fraternity was a direct reply to Mill's essay On Liberty. The most remarkable feature of Sir Patrick's lecture is his view of the nature of morality-the morality which the criminal law may enforce. Most previous thinkers who have repudiated the liberal point of view have done so because they thought that morality consisted either of divine commands or of rational principles of human conduct discoverable by human reason. Since morality for them had this elevated divine or rational status as the law of God or reason, it seemed obvious that the state should enforce it, and that the function of human law should not be merely to provide men with the opportunity for leading a good life, but actually to see that they lead it. Sir Patrick does not rest his repudiation of the liberal point of view on these religious or rationalist conceptions. Indeed much that he writes reads like an abjuration of the notion that reasoning or thinking has much to do with morality. English popular morality has no doubt its historical connexion with the Christian religion: 'That', says Sir Patrick, is how it got there'. But it does not owe its present status or social significance to religion any more than to reason.

What, then, is it? According to Sir Patrick it is primarily a matter of feeling. 'Every moral judgment', he says, 'is a feeling that no right-minded man could act in any other way without admitting that he was doing wrong'. Who then must feel this way if we are to have what Sir Patrick calls a public morality? He tells us that it is the man in the street', the man in the jury box', or (to use the phrase so familiar to English lawyers) the man on the Clapham omnibus'. For the moral judgments of society so far as the law is concerned are to be ascertained by the standards of the reasonable man, and he is not to be confused with the rational man. Indeed, Sir Patrick says 'he is not expected to reason about anything and his judgment may be largely a matter of feeling'.

Intolerance, Indignation, and Disgust

But what precisely are the relevant feelings, the feelings which may justify use of the criminal law? Here the argument becomes a little complex. Widespread dislike of a practice is not enough. There must, says Sir Patrick, be a real feeling of reprobation'. Disgust is not enough either. What is crucial is a combination of intolerance, indignation, and disgust. These three are the forces

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