【哈特】法律、自由与道德

I 'he Legal Enforcement of Morality, I onspiracy to Corrupt Public Morals, 6 Prostitution alid Homosexuality, 13 ositive and Critical Morality, 17 I1 . .. Ihe Use ar )use of Examples, 25 alism and r nforcemcnt of Morality, 3 The Moral Gradation of Punishment, 34 Private Immorality and Public Indecency, 38 The Moderate and the Extreme Thr~is . AR Populism and Democrac and thc justification f a its cnforeemcnt by law war simply &at the law might be used 16 preserve anything cswntial to society's aiti of this book to make somt thc point and 1 . . t e a . h Devlii &d an anal& k c e n immorality-in the . .: 'q - I > x n x of the infringement of a society's shared moral codc-and :.n +& ,..,.: ucasw, and argued that the suppression of such immorality was E much the law's business, and justifiable on the same grounds, ~e suppression of subversive activities. It is important for the understanding of &is book to of the book wherc I thlok &IS &ay have been m~sunderstoc some of my critics, and to reply to mu major criticism ur bv Lord Dcvlm. I also add a list of the more unoortant ?,:$*~ ., lat its argurncnrs are mainly of a nebtiye character designed m :,.- leet the sp i f i c use presented by b y d Dcvlin to justify .the up ,:,.:; $i f the criminal law to wanish deviations from a society's s h a d .',. illuminating publications concerned with drc main argument the book. I The threc lceturcs w h i i fmm tkis bDdr wcrc given at Sta University in 1962, and like mny two mr2Lr article?+ lmmornI11~ urrt Treason (Lrrrmrr, I.& and TAr Use and Abue of the Crrmzna Law (Oxfard Lnwyn, 1+t) they were intarded as a contributio~ to the public discusion in Eqland of &e proper scope of th criminal law whicb had bccn stimulrtcd by tbc publication in 1959 of the rcpoa of the CoaLmitrce on Hbmnsaual Offences and Prostitution (Thc Woifcndm Thir qmrt had recommended the removal of &mind xnmnioua from homosexual practices between consenting ndulte in piivate on the ground that wen if such practices arc d d d y hdd to be immornl something more than this must be &awn to justify tk w B( the criminal law: the control of conduct merely becaurc kt was immoral according to accepted standadr of a sockty was nof tbe law's business. The argument ueed by the Wolfcnden Commitae was attadred by Lord Dcvlin, then a Lord nf Appeal in Ordinary and widely regarded as a lawya of great distinctinn, in his Maccabcan lecture t British Acadcmy in 1959, on the E n ~ c c m c o t of Morals, sequendy included w11h o tha casays in his book of that published in 1965. His central argument was that a society's morality was as nweaary to its existence as a raognized governmen morality. I endcawural to make this plrin by drawing a distinction between the "positive" rtrmally shnrcd morality of a society and a "critical" morality and I empherivd &at tbe c r u d issue between Lord Devlin and myself was the sigaificDKe to be attached to the bare fact that conduct, no mam what, was ptoh~bited by a society's positive morality. Some of my c r h have taken me to task for *~kiug ova from LMd h I ' i & faulty and misleading detinition f morality. Tbcy would deny that the facr &at standards of conduct re widcly shared in a partidar society and mnngly supported y feellngs of "intotrance inblgnath and d i s p t " ( w h i i are the narks for Lord Devlm of thc morabty which the law may enforce) lough to warrant the deaription of [hoar mndards as "moral~ty". criticr also complain that I have Eiilad in thh to enquire (hat case there could be, on some mwc ntistxtory definition of norality, for cnfarcing its r q u i r e a m m . That criticisms certainly ~oint to important issues but I am miti &at the kind of case ~rgued by Lord Dcvlin Lo onc &i& has a smng prmn foci2 1 to many ordinary men and w m who both conceive of the ntional morality which they s b a ~ v ~ y mu& ol he does, and egard it, as ha does, ar "the invijbEc bond'" which holds society ogether. Moreover, as I tried to show in my lnta essay, Sonal lrdarrty and thr Enforcement of M d i y (UnivnsiEy of Chicago w Revicw, 1967) t h a t is a sbiking similarity between these v~ews and thc widely influential sociological theories of Emile Durkheim and Talcott Parwns. I thnugbt therefore that such views were sufEciiudy important to deserve detailed scrutiny on . , I1 o challenging the main l ina of Lord Deu dispute in this book his reliance on cemin pruv ish law as evidence that the law does attempt to enforce ". In particular I argued that the provisi~LL ,\, the victim's consent is not a defence to a cksj liberate assault, which Lord Devlin cited as. the legal enforcement of morals, could be explaii e of legal paternalism: the use of the law to prevehi arming himself or effectively consenting to others h*mi recognized that John Stuart Mill would not have thou? dmissible and I criticized Mill for a too absolute and dogma 'ection of paternalism, due to excessive confidence in the be1 at adult individuals always knew their own interests best a qercion-of an individual in his own interest is always fut rd Devlin's reply to my distinction between the enforceml lsitive morality and paternalism is contained in Essay on Mot nd Contempwary Social Morolity included in his hook and i link the most important of all his criticisms of my book. He atg lat the admission of any form of paternalism as a proper functi f the criminal law cannot consistently stop short with what :rms "physical paternalism" or "the control of a person's physi relfare". Once, parernalism is admitted it must be extended aternalism in matters of morals ("moral paternalism"), h e font F a person's moral welfare to protect him from moral harm, a iis is indistinguishable from the use of the criminal law to enfw ~nralirv nm-bicycle M a scat belt in a a r and ro is saved from I in, or death It is 1 think quite unclear why facing a i u n a v threat of legal puultier to crmfarm to motal r equk- I -say UI ta his sexual coadu-d k rrJIYdat an rmuiug ''' Lul. ,~,m welfare or a good of any kind. This is a serious question however morality is defined; but it is especially serious if the morality 7 in question is identified as simply the widely and strongly supported conventions of a particular society. Is the bare fact that a man deviates from any accepted moral code, which is what in this con- , . text Lord Devlin means by morality, to count just in itself as some kind of harm to him? It would he extraordinary to think of a black South African man who rcfuaed m comply with a moral E :ode of apartheid, or an Indian w a n i n Rfuaing to comply with . %,:; suttee when that was rrgardd rs ha moral JUT, as thereby 5 "morally" harming them.dves, and the m c of course applies to . .: homosexuals where the prevding s d mordity prohibits that . : form of sexual activity. Surely if "mom1 tarelfarc" and "moral harm" , ~ have any meaning a d are not ma+ arbitrarily used as 1.; . - vms for confnnnity to and deviation from D sacial morality, . . must bc some uiteriwi of the "hum" which is independent . , : (alleged) immorality of cwduct If Jlnr is nor, t hae is no . . rrgument that, in consistuucg, those who naepa '"hysical parer- ' , , nalism" must accept the enfmmnent of sDciPl morality as securing , . nord welfarc a pven t ing the moral harm of the agent. '! .,, . ,%\ > ' rhere are ,however two passages where careless writing on my :. r i ; )art may have encouraged some misundastandings. On page 4 of ; . ' 1 mk I offered three diffaent formulations of the question with I ;. . - - --. . I . I it was concerned. Is the fact that certain conduct is by ;om: . ;; without the inclusion of these words the three questions are not equivalent. I hope however that my insistence that the distinction I draw between positive and critiul morality, and my statement on p g c m that the question with zarhid~ rk bo$a is macaned is one abmt the legal eafonrmcnt ef ,pi&tn morality, may have made my intentions clern to most readers. I have h ~ w c v e ~ ie &wring to John Stuart Mill similnrly failed to pobot put that while he would have rejected 'Lord D ~ i i n \ argu- Mar& 481 SELEC- - '"" Brown, D. G. "Mill o rrty ar relity," Philosophical R e u i e ~ '972, p. 133. Dworkin, R. M. ?Lord Devlin and the Enforcement of Morals,'" : 1973, P. 591. Ten, C. L.."Crime and Immorality," Modern Imw Review, I f-cr question. Thex exhibit the manifold ways in which morality has determined the course of the law, somaimcs ' ' covcrtly and slowly through the iudicial proceys, some- times q~cnly and abruptly through legislation. I shall say , nomore here about this historical causal question, cxcept ': toutter the warning that the affirmative answer which may 8. ,:$ be given to it, and to its converse, docs not mean that an vcy whcn hr .-- xp~csriom r" or "kgal system"? Or should it n toprmu . ;marking off cntain social phenomena from others, a classifificmion wful or illuminating for theoretical purposes? A third question concerns t- . . . .. . d af the moral cnhcl.gm. 11g law open to moral c cism? Or d m the admissian the n rule is a valid ltx.+r ~ l e preclude moral crirk&~+ w The second question may be called mk Yet in our their common proscription of certain forms of violence and dishonesty) and that they share a common vocabulary of dktion in zwh an rights, obligations, and duties? These are famous q u m by the speaker of hi ingly so. The first is that the issue has been clouded by a loud but often confused debate. Secondly, amid the shouting, too little has been said about the criteria for judg- ing the adequacy of adefinition of law. Should such a drfi- a1 critique of Social institutions is in and indeed inconsistent, grou~ids. Some critics have ur : ' Vpith which the I a n map- interfere and those with whic dogmaticon Mill's pa ------. ay On --~~-.. Libert~ - onc hundred yeas djt, crirics cI&q & in wkkh be frames this an- mlity and fox @* On Liberty, Chapter I. 16id. cepted morality needs no argument to justify it, bePIiP .-tl;ll..R it. i;a morality which . . .-*,- is cnfmced. -..+ .- But Mill's.cri,tics l&&st f h back upon this brute assertion. They have in vanced many different arguments to justify the I ment of morality, but these all, as I shall attempt tosho 1 E. rest on unwarranted assumptions as to matters of fa I . .on certain evaluations whose plausibility, due in la measure to ambiguity or vagueness or inaccuracy of sta . . ment, dwindles (even if it does not altogether vanis when exposed to critical scrutiny. CONSPIRACY TO COURUFT PUBLIC MORALS In England in the last few years the question - whether the -~. criminal . law should , b u s e d A.. topunish -. ~ --,-~- immorality "as such" -.-. .- has acquired a new practical importance; for there' has, I think, been a revival there of what might. be termed lfgal - rnwalkez. . ~ ... ., Judges both in their judicial capacity and in extra-judicial statements have gone out of their way to express the view that the enforcement of sexual morality is a proper part*e law's business-as much its business, so one judge has argued, as the suppression of treason. It is not clear what has provoked this resurgence of legal mor- alism: there must have been many factors at work, and 'mong them, perhaps, has been the idea that a general stif- fening of the sanctions attached to any form of immorality may be one way to meet the general increase in crime by rirhich we are all vastly disturbed. But whatever its cause, his mowmat of judicial apinCon has goot Ear. h t y t a 'xlhc House of Lords in the c a s e d $&w v. Dkcciw of -*.- ,,&dges in Shaw's case invoked in their speeches. lish House of Lords represented as a new developmen Americans are accustomed, as the English are not, t bsured that, in California at least, the provision mak be regarded as a dead letter. This 1s now nor so wltn English, and both the use actually made of the lau Shaw's case and the future usc envisaged for it by the House of Lords are worth d e n h . The facts ia Shaw'r .*ire uz nut such as to excite sym- pathyfortbracc had done was to com- itutes, in u@nc aucl d and m indication (8J an obscene h n r * ~ pnfcrrd the in tfiE Hlmc d Lords af the charge bot wirh one dis- sentient M&j ztianhshiraarm ~ d i m k t d t h a t t I. Thcy lnecle ' n* for English udges, into t,k wca ot p l k q hi Dndct to empSrasise this. rarca perm iaw one or t judg AM S~monds), a Cham,, .lad been abol&hed &id th;lt the Court of .- King's Bench was the ~ d o ~ morwn of the people and had the superintendency of offences contra bonos mores, he was asserting, ag I now assert, that there is in that Court a residual p e r , where no mate has yet inter- vened to supcrscde the mm law, to superintend those offenm which me pwjudicid to the public wel- fare. Such &s will be rare, for Parliament has lot been slow to legidate when aaenrion Bas been sufi- iently a& But gaps & urd wit1 always re- nain, si~m no one ran &- eweq way in which tl .vickednw d m m may disrupt the ordm of society. Let me take a &Ie iaaums . . . kt it be supposed that at borne Eunur, php early, rkte homosexual practices between a&& conseclringmales are no longer crime. Would it BM bc aa oBexxx if even without bscenity mch were publidp advocated and waged by p ~ l l p h k and adv-ent? Or must sait till Ptsliemmt finds time to deal with su-h onduct? I say, my fmrcls, t l u i if the common law rowerless in such an rvcnt then we should no longer do her revcrcncc. But I say that h a hand is still pow- erful and that it is foi her Majesty's Judges to play the part which Lxud M d l d painted out to them.' Shaw v. Director of Public Prosecutions (1961) 2 A. 52-53. (1962) A.C. at p. 268. I Lady Chattcrlcy r L mu& of it as r dictum. But the il or learning shall uc tht H o u a o t ~ o r d s to the exceedingly t q on, ~ I I U u it is paved that on these gmwm of cormpting&&sF morals h; licatimb justified as being for the public g 4 . m a h - , ~undcrtbrsstatute is committed. Evidence as to these merits the House of Lords approved in this case tha ~ - - ' ,<-, .... .,.* - ... . ce ~ m ~ o s e d @ ~ ~ e ~ ~ f e i c nrdi--4- :trong words hav~ : 2n &e same way, though parliament in recent legisl: 1 down," and a w 'has refrained from making prostitution itself a crime, as sed agreed to dm .,-. 'distina fwm soliciting in a street or public place: it seem* of a jury might- yiead-c '.'&at i t hapen to the Courts under the doctrine of Shaw ~ver be no approach to thl ,~ ~~ . - . .. ~ m:&.what Parliament has not done. Som ,&an t h 2t may be so used has already been c -..., .n question be "public" in z . - ~. . ' - he importance attached by the judges in !KO . the -,--. revi~$~of*dea ~. that the Courts - #s th; cur: m ~ m p ~ o t ~ ~ ~ g ~ ~ ~ a ~ ~ e ~ ~ ~ ~ pu itc manners" --- may be gauged frbm 'I=-,& that this revival was plainly a deliberate : & f& the antiq& cases relied upon as prece :mselves of this common law offence to avoid the re&- : pLdnlr wrnitted, even under the rigorous English doc- ns imposed by statuteor statutory defences. T$wr the i eet Offcnces Act 1959. tute' under which the publishers of D. H. L ~ s 7: 7 (1961) 2 A.E.R. at pp. 461,466. a The Obsiene Publ~cations Act tionf3 to give effect to the Committee's rtcommendaticak: concerning prostimtion but Mt to that c&ng hf~U@- d i t y , and m m p t s by private members to introd* legislation mddying the law on this subject havk5: failed. ~. . <. What concerns us here is less the fate of the Wolfen Committee's recommendations than the principles which these were supported. These are strikingly si to those expounded by Mill in his essay On Liberty. Thq%: section 13 of the Committee's Report reads: k~ dation concerning prostitution that legislation should stitution itself illegal. ;:.&was based on the principle stated simply in section 6 Report as follows: " le Street Offences Act 1959. I ; ~ . I , il. .-:.: ,, . , . . . . . > :- terms, not the law's business.!& It is of some interest that these developments in England have had near counterparts in America. In 1955 the Amer- ican Law Institute published with its draft Model Penal Code a recommendation that all consensual relations bt- tween adults in private should be excluded from the sco of the criminal law. Its grounds were (inter dia) that " ham mshe secular interests of the community is inv insrppfcal sex practices in private between consenting ad1 partners";" and "there is the fundamental question of t pratection to which every individual is entitled against st: interference in his personal affairs when he is not hurti othas."" This recommendation had been approved I thc Advisory Committee of the Institute but rejected by majority vote of its Council. The issue was therefore f m t d to the annual meeting of the Institute at Washi :. ma in May 1955, and the recommendation, supported by '&an doquent speech of the late Justice Learned Hand, was, after a hot debate, accepted by a majority of 35 to 24'' 1 It is perhaps clear from the foregoing that Mill's prin- i ciph are still vprv much alive in the criticism of law, what- American I raitute Wodd h a 1 Code, Tentative Draft 1. P. 277. ' Ibid., p. 178. An account of the d&ts L drea in Time, May 30, 1955. p. ever their theoretical deficiencies may be. But twice in one hundred years they have been challenged by two masters of the Common Law. The first of thrs was the gput Vk- torian judge and historian of the Criminal Law, Wtzjames Stephen. His criticism of Mill is to be found in the sornbre and impcssive book Liberiy, Equality, Frrrtn. nity," which he w m t ~ as a direct reply to Mill's essay Om Liberty. It is evident from the tone of this book that W- phen thought he had found crushing arguments ag* Mill and had demonstrated that the law might justifdy .morality as such or, as he said, that the law s h d bc " ~ s c ~ + w P i g n ~ o f the gro lateg on the public q@t,&rd Devlin, now a member of the Hnac ' .?i - of Lord . a most distinhshed writer on the criminal law, in : ;say on The Enforcement. of Morals2' to& as : & e Report's contention "that there must h: a . ' i . 4 ilarity in the gener: .F their arguments is . . g::. .;, ,, 4 & -1.L '8 2nd edition, Lond, , maindcr of these lecturcs to an atamination oi them. I do this bccausc, thmgh their arguments are at points wn- fused, dLcy 4 y d l h e the m m h t of ra tional opposition. They are not only admirably stocked with collcrete examples, but they express the consided views oh skilled, sophisticated lawyers experienced in the administration of the criminal law. Views such as theirs arc still quite widely held especially by lawyers both in England and in this country; it may indeed be that they are more popular, in both countries, than Mill's doctrine of Liberty. 'OSITIVE AND CRITICAL MORALITY re we consider the detail of these argument k, necessary to appreciate three different but d features of the question with which we are con- the three formulatiom given on page 4 it is . ! .~_ ~in~o,-&-e-9uestion in t y9 ne importance or tnis feature that . . ~ u l d plainly be no sufficient answer to show that in fact in some society-our own or 0th regnrded as morally quite right and proper to enforce, ' to preserve it. Nonethelef~ Lor inorality:'! In asking the question, w - , .. . . .legitimacy of a : ' : , i n s t i t u t i o n ~ o ~ i s