Reviews
| Date | 01 May 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01033.x |
| Published date | 01 May 1964 |
REVIEWS
LAW, LIBERTY
AND
MORALITY.
By
H. L.
A.
HART.
[London:
Oxford
University Press.
1963.
88
pp.
15s.
net.]
THIS
book consists of three lectures delivered by Profesor
Hart
at
Stanford
University, U.S.A., which are
so
far above my head that the Professor may
justly regard it as an impertinence that
I
should presume to review them;
and in self-defence
I
may be permitted to say that it was not my idea
that
I
should do
so,
but
1
was unable to resist the offer of
a
review copy. The
author
is
not merely the Professor of Jurisprudence (a subject which
I
have
never really believed to exist) in Oxford University; he
is
also
a
top-ranking
philosopher, and the subtlety of his thought can
only
excite feelings of awe in
readers like myself who follow the law merely
as
pedestrians.
It
is concerned principally with
prostitution and gross indecency between two or more male persons, though
the author permits himself occasional side glances
at
bigamy, drug-peddling,
abortion and euthanasia. He deplores, as
I
do, the decision
in
Sham
v.
D.P.P.
[1962]
A.C.
223
and he also deplores, if
I
have followed him correctly, the
failure of Parliament to give effect to the majority recommendation of the
Wolfenden Committee that homosexuality between consenting male adults,
when practised in private, should not be
a
criminal offence
at
all.
I
am on
his side here too.
My objection to homosexuality being
a
crime in such circumstances is that
if
the
parties happen
to
fall out
it
enables the one who
gets
in first by going
to the police to blackmail the other.
I
have had to try such
a
case
at
Quarter
Sessions and have not enjoyed it. But Professor
Hart
says nothing about
this aspect of the matter. My objection to
8haror‘s
case is that
it
seems to
leave the door wide open for judges to invent new offences
as
they
go
along,
which is dangerously in line with Hitler’s prescription for judges in Nazi
Germany that they should not worry too much about the precise letter of
the law but should be prepared
to
condemn any conduct which was
“
contrary
to the sound instinct of the people.”
I
am happy to find that the author
takes the same point. The question
which he poses on p.
4
is
:
cc
Ought immorality
as
such to be
a
crime?
”
At
p.
82
he says that “anyone who raises, or is willing to debate, the question
whether
it
is justifiable
to
enforce morality accepts the view that the actual
institutions of any society, including
its
positive morality, are open to criticism.
Hence the proposition that
it
is
justifiable to enforce morality
is,
like
its
negation,
a
thesis of critical morality requiring for its support some general
critical principle.” In the intervening seventy-five pages he cites some of the
profoundest thinkers of all time, including Hegel, Kelsen, Rostow, Burke and
Lord Denning. The debate
is
evidently one for connoisseurs.
It
is
rather like
a
game of tennis-I mean genuine tennis
as
played by King Henry
V,
not
lawn tennis.
You
do not need to know enough
about
it
to be able to distinguish the
tambour
from the
grille
or to appreciate
what is meant by formulae such
as
chase better than half a yard
”
to
be able
to watch it for half an hour with the greatest pleasure and without reaching
any conclusion about what the players are trying to do or which of them
is
getting on the better.
It
is the curious architecture of the court,
the
expertise
of the performers and the quicksilver antics of the ball which hold
you
spell-
bound. And of course the four-handed game
is
even more satisfying than
865
One could hardly call this
a
jolly book.
But his real point
is
much deeper and more penetrating.
This is not to say that the debate is dull-far from it.
This is
a
gorgeous game.
366
THE MODERN
LAW
REVIEW
VOL.
27
the straight single. In the game under review Professor Hart is partnered
by John Stuart Mill against Lord Devlin and Mr. Justice Stephen (Hart and
Devlin are of course the first strings).
I
will not undertake to say which
side comes
off
best, though my impression is that the match is abandoned for
want of time to finish it with Hart and Mill leading by two sets to one.
It
is a remarkable feat to have worked up such
a
dazzling display from such
squalid material. C.
P.
HARVEY.
LAW
AND
JUSTICE.
By
A.
J.
KERR.
[Grahamstown,
S.A.
:
Grocott
&
Sherry.
1963.
xiii and
115
pp.
(with index).
12s.
6d.
net.]
THIS
is another book that
I
am not qualified to review; not because
I
am
unable to follow the argument but because
I
find it difficult to determine
what the author wishes to prove by it. In the space of
a
mere
101
pages
Mr. Kerr quotes or cites
364
passages from the New Testament and ninety-
seven from the Old (for this purpose he has recourse to nine separate
translations) as well as referring to about forty philosophical and near-
canonical authors extending from St. Thomas Aquinas to Dr. A.
L.
Goodhart.
This terrific artillery is trained on a target which,
I
should have thought,
could be demolished by a few rounds of well aimed rifle fire. Unlike Professor
Hart, who asks what sort of laws
a
law-maker ought to make,
Mr.
Kerr
approaches from the opposite direction and asks what sort of laws the
individual should feel himself bound to subscribe to. He concludes that if a
law is manifestly unjust a Christian man is entitled in conscience to disobey
it. But there is nothing new in this proposition; the same point was taken
by Coke in
Bonhamt’s
Case,
8
Rep.
at
p.
118 (1609)
and by Blackstone in his
Commentaries.
Moreover,
it
is far from clear that one needs to be
a
Christian
for this purpose, for Mr. Kerr indicates that Cicero was of the same way of
thinking.
I
cannot suppose that the author means to suggest that Christians
will feel more difficulty than non-Christians in declining to comply with laws
which seem to them to be unjust.
However, he has chosen to build up his case on
a
formidable foundation
of Biblical learning which carries one far beyond the limits of the normal
scriptural curriculum. Following him through this exposition is by no means
uninteresting. We learn, for instance, that
a
Jew in Palestine in the time of
Christ could effectively pawn his shirt but not his overcoat, and we are also
given an outline of the rules relating to
donatio
mortis
causa
under Talmudic
law and of the rights of co-heirs. But
I
have failed to perceive the relevance
of these items
to
Mr. Kerr’s main theme
or
to contemporary conditions in
South Africa. For
Mr.
Kerr is an advocate of the Supreme Court of South
Africa., and one would have expected him to direct his broadside at the whole
legal apparatus of
apartheid.
On the contrary, he
takes care to point out that “certain laws relating to the Bantu must be
considered
as,
on balance,
a
credit to the State, lest readers obtain an
unbalanced picture of the position as
a
whole,” and that the “provisions for
old-age pensions and invalidity grants for the Bantu compare favourably with
the provision made by other governments in Africa south of the Sahara.”
Turning to the bad side of South African law, he alludes in general terms
to “the powers of the government to detain persons in prison without
bringing them to trial,” but the only specific measures he attacks are the
‘‘
Church clause
”
which enables Bantu Christians to be excluded from Christian
services in certain areas and “the injustices arising from the Bantu Education
Act, the Group Areas Act, and the
‘
Job reservation’ provisions of the
Industrial Conciliation Act.“ Being unfamiliar with these Acts and receiving
no guidance from the author as to what they provide,
I
found these conclusions
But he does not do
so.
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