behind the moral law, without which it is not 'weighty enough to deprive the individual of freedom of choice'. Hence there is, in Sir Patrick's outlook, a crucial difference between the mere adverse moral judgment of society and one which is inspired by feeling raised to the concert pitch of intolerance, indignation, and disgust.

This distinction is novel and also very important. For on it depends the weight to be given to the fact that when morality is enforced individual liberty is necessarily cut down. Though Sir Patrick's abstract formulation of his views on this point is hard to follow, his examples make his position fairly clear. We can see it best in the contrasting things he says about fornication and homosexuality. In regard to fornication, public feeling in most societies is not now of the concert-pitch intensity. We may feel that it is tolerable if confined: only its spread might be gravely injurious. In such cases the question whether individual liberty should be restricted is for Sir Patrick a question of balance between the danger to society in the one scale, and the restriction of the individual in the other. But if, as may be the case with homosexuality, public feeling is up to concert pitch, if it expresses a 'deliberate judgment' that a practice as such is injurious to society, if there is 'a genuine feeling that it is a vice so abominable that its . mere presence is an offence', then it is beyond the limits of tolerance, and society may eradicate it. In this case, it seems, no further balancing of the claims of individual liberty is to be done, though as a matter of prudence the legislator should remember that the popular limits of tolerance may shift: the concert pitch feeling may subside. This may produce a dilemma for the law; for the law may then be left without the full moral backing that it needs, yet it cannot be altered without giving the impression that the moral judgment is being weakened.

A Shared Morality

If this is what morality is-a compound of indignation, intolerance, and disgust-we may well ask what justification there is for taking it, and turning it as such, into criminal law with all the misery which criminal punishment entails. Here Sir Patrick's answer is very clear and simple. A collection of individuals is not a society; what makes them into a society is among other things a shared or public morality. This is as necessary to its existence as an organized government. So society may use the law to preserve its morality like anything else essential to it. 'The suppression of vice is as much the law's business as the suppression of subversive activities'. The liberal point of view which denies this is guilty of an error in jurisprudence': for it is no more possible to define an area of private morality than an area of private subversive activity. There can be no "theoretical limits to legislation against immorality just as there are no such limits to the power of the state to legislate against treason and sedition.

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Surely all this, ingenious as it is, is misleading. Mill's formulation of the liberal point of view may well be too simple. The grounds for interfering with human liberty are more various than the single criterion of 'harm to others' suggests: cruelty to animals or organizing prostitution for gain do not, as Mill himself saw, fall easily under the description of harm to others. Conversely, even where there is harm to others in the most literal sense, there may well be other principles limiting the extent to which harmful activities should be repressed by law. So there are multiple criteria, not a single criterion, determining when human liberty may be restricted. Perhaps this is what Sir Patrick means by a curious distinction which he often stresses between theoretical and practical limits. But with all its simplicities the liberal point of view is a better guide than Sir Patrick to clear thought on the proper relation of morality to the criminal law for it stresses what he obscures—namely, the points at which thought is needed before we turn popular morality into criminal law.

Society and Moral Opinion

No doubt we would all agree that a consensus of moral opinion on certain matters is essential if society is to be worth living in. Laws against murder, theft, and much else would be of little use if they were not supported by a widely diffused conviction that what these laws forbid is also immoral. So much is obvious. But it does not follow that everything to which the moral vetoes of accepted morality attach is of equal importance to society; nor is there the slightest reason for thinking of morality as a seamless web: one which will fall to pieces carrying society with it, unless all its emphatic vetoes are enforced by law. Surely. even in the face of the moral feeling that is up to concert pitchthe trio of intolerance, indignation, and disgust—we must pause to think. We must ask a question at two different levels which Sir Patrick never clearly enough identifies or separates. First, we must ask whether a practice which offends moral feeling is harmful, independently of its repercussion on the general moral code. Secondly, what about repercussion on the moral code? Is it really true that failure to translate this item of general morality into criminal law will jeopardize the whole fabric of morality and so of society?

We cannot escape thinking about these two different questions merely by repeating to ourselves the vague nostrum: 'This is part of public morality and public morality must be preserved if society is to exist'. Sometimes Sir Patrick seems to admit this, for he says in words which both Mill and the Wolfenden Report might have used, that there must be the maximum respect for individual liberty consistent with the integrity of society. Yet this, as his contrasting examples of fornication and homosexuality show, turns out to mean only that the immorality which the law may punish must be generally felt to be intolerable.