Part 6: Enforcement of Morals vs. Harm Principle
Patrick Devlin: Enforcement of Morals
Devlin is a British jurist who disagreed with Mill's harm principle. Instead he favored society's right to restrict even activities between consenting adults. We will not read Devlin's writings directly, but below is my synopsis of his argument.
Prostitution, homosexuality, sodomy, drugs, and gambling should be criminalized. Society requires a common morality. This entails the right to criminalize immoral conduct. Why would we place an artificial limit on society's right to criminalize immorality by saying some immoral actions are crimes and others are not? Without a commonly enforced morality, society will fall apart (as history shows). Mill would argue that a man getting drunk in the privacy of his own home only harms himself (yet may offend us). Suppose half of all people in our country got drunk in their own home every night. The economic results for all of us would be disastrous. At what point do we say society can restrict this behavior? Some sort of artificial percentage of the population?
Rather, Devlin argues, society should retain the right to criminalize even the first man as his action is immoral, even if only to himself. Society may not be able to make people be virtuous, but this does not mean we cannot punish vice. Adultery may involve consenting adults, but when it breaks up a marriage it is harmful to society. Even if the purpose of law is simply to protect society, then these behaviors must be restricted. By ignoring the morality of the individual we invite more immorality in society which in turn harms society.
The purpose of law is to uphold the public safety, good, and decency. Given this, there is no reason not to criminalize conduct that is deemed indecent (or immoral) by the vast majority of the populace. Devlin further points out that we cannot in good faith separate western law from Christian morality which informed so much of law. This is not to say that if the majority does not like something, we should criminalize it. Instead, the majority must really feel "reprobation" that something really wrong and potentially harmful has occurred.
Not every such immoral activity can be criminalized. Devlin finds that adultery, for instance, may be too difficult to enforce laws against it in all its forms, but we might at least have legal penalties for its most egregious harms. This might mean that we allow spouses significant legal advantages for obtaining majority property shares in divorces when adultery is the cause of divorce. Any such law (and there are states with laws of this type) would be informed by a moral judgment against the adulterer.
H. L. A. Hart: Immorality and Treason
Hart is often considered the most influential legal philosopher of the modern age. He took issue with Devlin's disagreement with Mill. We will not read Hart directly, but below is a brief synopsis of his critique of Devlin.
According to Hart, Devlin's argument is too focused on feeling that an action is immoral rather than on reasoning that something seriously immoral has occurred. As such, the question is not how the vast majority feel, but can that majority provide reason to demonstrate an activity is sufficiently immoral as to justify criminalization? Can the case be made through reason that homosexuality is so immoral as to threaten the fabric of society and justify criminalization?
Supporting moral feeling rather than moral reason is risky. Once, in American history, we felt sufficiently morally threatened that we burned women at the stake for "witchcraft" without giving any reason whatsoever.
Morality does inform the law, but it should be a morality of reason and not feeling.