CRIME AND IMMORALITY1
| Author | C. L. Ten |
| Date | 01 November 1969 |
| Published date | 01 November 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01241.x |
CRIME AND IMMORALITY
'
LORD
DEVLIN'S Maccabaean Lecture
The Enforcement of
Morals
i-
stimulated
a
great deal of controversy. The dispute over the legal
enforcement of morality has, however, a longer history, and the
differences of opinion expressed can best be formulated by con-
sidering the answers which may be given
to
the following questions
:
1.
Is
the fact that an action is generally regarded as immoral
in itself
a
good reason
for
it
to
be made a crime
?
2.
Is
the fact that an action is generally regarded as immoral
in itself ever
a
sufficient reason
for
it
to be made a crime?
I
At their uncompmmising best the two great liberal philosophers,
Locke and Mill, gave negative answers
to
the first question, and in
so
doing they necessarily also gave negative answers
to
the second
question. Their answers form the basis
of
the liberal doctrine
on
the legal enforcement of morality. Critics
of
this doctrine, like
James Fitzjames Stephen, have
not
merely given an affirmative
answer
to
the first, but also to the second, question. Stephen
maintained that while the fact that
an
action is generally regarded
as immoral
is
not always
a
sufficient reason for
it
to
be made
criminal,
it
is nonetheless sometimes a sufficient reason.
In
the
approach
to
the practical problems
of
the law,
it
is the answer to
this second question which produces
a
crucially different doctrine
from that of the liberal.
U'
the critics have been content with an
affirmative answer
to
the 6rst question, but not
to
the second,
then their position need not be radically different from the
liberal doctrine. For
if
they are prepared
to
say that, given that
human beings are what they are, there is
no
conceivable situa-
tion where an action which is generally regarded as immoral
should in virtue of this
faat
alone be made criminal, then one may
begin
to
suspect that their answer
to
the first question is not
to
be taken too seriously. All that is asserted could amount to
no
1
I
am indebted to Professor
IT.
L.
A.
Hart
for
his
comments and critici6rns
which have helped me very
2
Now
reprinted under the title, Morals
and
the
Criminal Law
'I
in Lord
Devlin's collection of essays,
'The Enforcement
of
Morals,
O.U.P., 1965. All
subsequenk
references
It0
Lord Devlin's views are
to
this volume of essaye.
Among the more important criticisms of Lord Devlin's thesis are:
H.
L.
A.
Had,
"Immorality yd Treason,"
The
Listener,
July
30,
1959,
p.
162;
Richard Wdlheim, Grime, Sin
and
F.
Justice Devlin,"
Encounter,
November 1959,
p.
34;
Graham
Hughes, Mods and the Criminal Law,"
Yale Law Journal,
March 1968,
p.
662;
H.
>.
A.
]&art,
Law,
Libdy
and
Morality,
O.U.P.
1963; Glanville Williams,
Authoritarian
Mpls and the
Criminal Law
"
[1966] Crim.L.R;
1.52;
,and
Rosdd
Dworkin.
Lord
Devlin
and the Enforcement
of
Morals,
Yale
Law
Jounal,
Max 1966,
p.
986.
A
defence of
Lord
Devlin is to be found
in
Eu ene &stow,
The
Enforcement
of
Morals,"
CambTidge Law Journal,
Novem%er 1960,
p.
174.
648
Nov.
1969
CRIME AND IMMORALITY
649
more than that the mere immorality of an action is a reason for
it to
be made criminal buk never
a
very good reason, for
it
is always
and easily defeated by other more important considerations. Then
the dispute between them and the liberals may become dangerously
close
to
a verbal one. But while this is indeed one possible develop-
ment of an affirmative answer
to
only the &st question,
it
is not the
only one.
It
is also possible that the affirmative answer could in
certain cases show its importance by tipping the scales against the
reform
of
a particular law. Hart has given an admirably lucid
account
of
this process
of
balancing:
“
It
is sometimes said of Mill’s principles that even
if
it
is
correct that the criminal law should not be used except
to
prevent harm
to
others this is useless and empty since there is
no
practice which anyone would wish to punish
on
moral
grounds which does
not
have some harmful effects. There is
no
such thing,
it
is said, as immorality which is harmless. But
this objection, even
if
it
is accepted as correct, misses the point
of the ‘invocation of Mill’s doctrine in these current contro-
versies; for as long as the bare fact that conduot contravenes
social morality is accepted as a justification
for
making that
conduct a crime, this enables those who defend the laws to
say that factual arguments tending
to
show that the practice
does little harm compared with the harm and misery created
by its punishment are inconclusive
or
indeed irrelevant. This
is why the denial that any immoral action can be harmless
to
others, even
if
it
is accepted, still leaves an important place
for the invocation of Mill’s principle.
It
is quite clear that in
many current controversies, as in the case
of
abortion, the
defenders
of
the law would not be content
to
leave the matter
to be decided
on
an assessment
of
the balance
of
harm without
bringing the immorality
of
the practice into the scale.”
However, those who want their affirmative answers
to
the first
question
to
be taken seriously have sometimes underlined the
importance they attached
to
the mere immorality
of
an action
by arguing that there are occasions when this fact alone is
a sufficient reason
for
making the action criminal. Lord Devlin’s
lecture aroused a great deal of interest because
it
seems
to
be
a
systematic and significant contribution
to
this clearly anti-liberal
position. But before considering Lord Devlin’s arguments support-
ing his thesis,
I
wish
to
return
to
the two liberal philosophers, Locke
and Mill, whose writings contain many of the reasons which have
been put forward for the liberal doctrine.
11
Locke’s
A
Letter‘ Concerning Toleration,
though concerned with the
question
of
religious toleration, has much t,hat is relevant, to the
contemporary debate
on
the enforcement of morality. Locke
dis-
3
The
Morality
of
the
CriminuZ
Law, O.U.P.,
1965,
pp.
48-49.
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