Reviews
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01123.x |
| Author | J. W. Bridge,O.C. Giles,L. Neville Brown,Florence O'Donohue,C. P. Harvey,Antonia Gerard,C. A. Weston,H. A. Hammelmann,Harry Street,F. H. Newark,A. T. Markose,Raymond Walton,J. A. Coutts,Colin Tapper,J. F. Garner,Ian Bronlie,J. D. McClean,E. J. Cohn,Gordon Borrie,F. A. Mann |
| Date | 01 March 1966 |
| Published date | 01 March 1966 |
REVIEWS
THE
ENFORCEMENT
OF
MORALS.
By
PATRICK
DEVLIN.
[London:
Oxford
University
Press.
1966.
xiv
and
189
pp.
26s.
net.]
Tm
title of this book suggests, accurately enough, thnt it
is
n
development of
Lord Devlin’s Maccabaenn lecture. The seven essays include tlie original
piece, and add to
it
six others: three of these apply the doctrine in the fields
of minor statutory offences, torts, contract and marriage; the other tlirce
develop particular strnins in the original argument, prompted for tlie most
part by Professor Hart’s criticisms in his
Listenor
article and in
Law,
Liberty
and
Morality.
The most interesting of the three essays applying the doctrine in new areas
is
that denling witli marriage. Lord Devlin advocates some radical reforms,
but often from a very old-fnshioncd point of view. Thus
he
proposes that
divorce should be within the completely unfettered jurisdiction of, the judge,
and that the only question for him to decide should be the suitability
of
the parties for re-mnrriage. But
at
tlie same time he qualifies this by
excluding from such suitability anyone without the means
to
support
both
an original and
a
second family.
Tile lnst three essays developing the ideas of the Maccabaenn lectures are
quite fascinating.
It
seems
.tliat
Lord
Devlin has modified his position
a
little,
or
as he prefers
to
put
it,
has reduced the emphasis on the element of
“feeling” in the reasonable man’s judgment of the morality of an action.
This change is indeed slight by comparison with the massive reiterntion of
thc main themes of the original. In particular Lord Devlin hammers away
at
his best point, namely,
the
ambiguity of the Wolfenden Committee’s simple
criterion of harm to others as either
n
test
of
morality
or
a
justification for
lcgal intervention, and the question of how far to apply it.
As
Lord Devlin
points
out,
this is not
a
simple
test
at
all until harm
is
closely defined.
It
seems clear thnt any such definition must go beyond physical pain, since it
is otherwise impossible
to
account for the Cornmittce’s distinction between
homosexual activity with consenting ndults and ‘with consenting children.
Nor
is it enough
to
argue that in the latter case the harm lies in the absence
of true consent, for this would take in far too much. The only possible line
of escape
is
to assert that some things although immoral can, in some circum-
stances, be tolernted. This is however
a
very empty assertion and some new
criteria for distinguishing between cases
for
intervention and cases for tolern-
tion must be provided. Lord Devlin is particularly convincing in his
demonstration of the straits to which Professor Hart is driven in an nttempt
to provide such criteria without impinging too far on Mill’s original position.
Lord Devlin
is
able to show that Professor Hart’s modification of Mill is
really more of
a
revolution, nnd that Hart himself in falling back on
paternalism still offers no precifie
or
coherent criteria for its operation.
Unfortunately Iard Devlin also elaborates his weak points, nnd they nre
n
pod
deal wenker and
more
numerous than Mill’s nnd
Hart’s.
Lord
Devlin
still sticks to his view
that
society must be defined in terms of
a
shnred
morality, and to his view that deviations from such
a
shared morality will
lead
to
the downfall of
that
society, and to his view that society
is
entitled,
indeed obliged,
to
preserve itself ns it is, and to his view that the best test
of the morality of
n
society
is
to
be found in the judgment of
a
jury. These
views have not increnscd in plausibility slncc
10119.
In his original lecture
Lord Devlin rnther glibly ran the
first
threc views together. Of course, if
society
is
defined in
terms
of
a
shared morality, then any deviation from this
218
214
“HE MODERN LAW REVIEW
VOL.
29
morality will lcad to the
destruction
of that society, and if society
is
invested
with
a
duty to maintain itself, then it has
a
duty to intervene to check such
a
deviation.
What
the argument obscures
is
that this
deetrtlotion
is
of
a
purely theorctlcal character.
It
is
not neccssarily catastrophic. What
is
left
after the
destruction
is
not, no society, but mcrely
a
society of
a
slightly
different character. The absurdity of the argument
is
demonstrntcd by
supposing
a
change in the moral bchaviour of
a
society agreed on all sides
to
be
a
change
for
tho better. On this -analysis of Lord Devlin’s, society
would here too be under
a
duty to stamp out the improvement.
It
is
also
true,
as
Wollheim has pointed out, that this doctrine would lead inexorably
not only to the prohibition of acts of immorality, but also to the prohibition
of any criticism whatsoevcr and howsoever
of
the current morality
of
the
society. Now Lord Devlin
at
least separates the arguments, and it becomes
apparent that he rcnlly believes in
tlic
actual destruction of society aa we
know
it,
if
society
is
not granted thc right
to
prcvcnt private vice which
harms no one. Unfortunately Lord Devlin’s case
Is
hardly advanced by the
replacement of the example
of
the dissolution of tlic Roman Empire which
had been ridiculed by all reputable historians, with hypothetical speculation
about the likcly reactions of
a
nation of
‘‘
debauchees’’ to Winston Churchill’s
exhortations in
1940.
Nor
is
it
clear,
to
me at least, how vice which
is
by
dellnition private and harmless can consistently lead to the misery and pain
for all which
is
involvcd in the real destruction of
a
society, and
It
is
still 1e.w
clear how such
a
result can be used as an argument
to
justify the prohibition
of private vice which harms
no
one.
It
is
in his amrmation of the jury as the arbiter of morality that Lord
Devlln
is
at
his most stimulating. Although he may shrink from
it
now,
there is no denying the implication in the original lecture that rational inquiry
only has
a
place where the jury’s feelings have not been aroused to concert
pitch. What Lord Devlin claims he did not mean then, and certainly docs
not say now,
is
that the jury should ever have
n
positive role in the creation
of
ncw criminal offences. In this he differs sharply from the majority of the
House
of
Lords In
9’haw‘s
case, although there seems little doubt that the
majority were influcnced by
his
views,
or
wlint turns out to be their
misinterpretation of them. In this respect at least their lordships can hardly
be blamed.
It
now seems that when Lord Devlin spoke of the jury feeling
intolerant, indignant and disgusted he rcnlly meant these feelings to be
directed not
at
practices (despite his specific reference to practices on
p.
17)
but
at
bad laws, and that they wcrc to be expressed not by convictions but
by acquittals.
On
the positive side,it appears that it
is
for the legislature by
some unexplained and perhaps inexplicable process to determine when the
jury would feel in this way, and then
to
legislate accordingly.
It
is
evident
that the clarity and ease of Lord Devlin’s original lecture conceals
a
diffusion,
convulsion nnd confusion of thought
so
intense that it
Is
now only beginning
to
be unmvellcd.
QLIN
TArrEn.
LEGAL
SYSTEMS
AND
LAWYERS’ REASONINGS.
By
JULIUS
STONE.
[London: Stevens
&
Sons.
1064.
xxiv
and
864
and (indices)
100
pp.
€8
16s.
net.]
Pitomason
STONE’S
Provinco
ad Function
of
Law
was rightly hailed as
a
milestone in the history of jurisprudence and it waa expccted to be
a
signpost
for the future. Yet
its
influence does not appear
to
have been as great
ns
its author had every right to expect. Perhaps
a
work addressed to prac-
titioners, professors and students alike
is
bound to give complete satisfaction
to none: perhaps the very dimculty of thc problems dealt with deterred the
busy judge and the idle student alike: certainly the wealth of footnotcs, into
To continue reading
Request your trial