The Legal Enforcement of Morals and the
So-Called Hart-Devlin Controversy
Yves Caron *
The Legal Enforcement of Morals and the
So-Called Hart-Devlin Controversy
The enforcement of morals through legal sanctions is not a new
topic to legal philosophers. It has, in the past decade, been the
object of a new and thorough examination, though it is still open
to further discussion. The “new morality” of the second half of the
twentieth century will also contribute to keep the fire alive as a
result of the widening gap between the traditional Christian morality
and the morals that modern society seems increasingly prepared to
accept and tolerate.
Morality implies a basic reference to the distinction of what is
right from what is wrong. Various moralities differ as to the extent
of what is right and what is wrong, or good and bad, and therefore,
each community, nation or society may have its own morality,
according to the local beliefs, whether social, political, religious or
other. Moreover, the expressions “morals” and “morality”, though
broad in meaning, have too often been understood to have a close
connexion with sexual morality. Legal and philosophical writers are
not always careful to indicate that although the main illustrations
of moral problems are generally taken from sexual morality, morality
remains fundamentally a classification of what is right and wrong.
More sophisticated definitions of morality have also been worked
out in the debate on the distinction between law and morals. Following
the utilitarians of the last century,’ Professor H.L.A. Hart proposes
two working definitions of morality: 2 “positive morality”, or the
morality actually accepted and shared by a given social group, and
“critical morality”, which may be defined as “the general moral
principles used in the criticism of actual social institutions including
positive morality”. Hart then proceeds to examine the question of
* D. Phil. (Oxon), Associate Professor, Faculty of Law, McGill University.
‘Austin, J., The Province of Jurisprudence Determined, (London, 1954), ed.
by Hart, pp. 11-12, 125427.
2 Hart, H.L.A., Law, Liberty and Morality, (1263), Vintage Book ed., p. 20,
hereinafter cited as Hart.
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the legal enforcement of morals as one of “critical morality about
the legal enforcement of positive morality”. 3
The
term “enforcement” also needs some clarification. The
legal enforcement of morals means, in practice, the separation of
crimes from sins. There are two main instruments to ensure the
enforcement of morals: statutory legislation and judge-made law.
When the legislator adopts a statute regulating some aspect of
morality, the enforcement of morals is seen as a matter of policy
at the political level: no government is likely to adopt a law that
does not satisfy the moral conscience of the population. The actual
enforcement of such a law can also be a matter of policy, either
political or merely administrative. But when the legislator remains
silent on some aspects of the legal enforcement of morals, the courts
have often stepped in, and reaffirmed their right and duty as
custos morum of the people. In those cases, the legal enforcement
of morals is not a matter of political policy but of mere interpretation
of what is right and wrong, as assessed by expert witnesses and
stated by a jury, subject to the revision of the higher courts. Their
judgement and opinion will, therefore, constitute the yardstick that
will be used to measure what society is or will be prepared to tolerate
in the field of morality, and to what extent it is prepared to accept
the legal enforcement of morals.
But why should society care for the legal enforcement of morals
in the first place? Is the right to punish or to impose sanctions
an essential or natural right of society? What is the purpose of
punishment, and, in any event, does punishment yield sufficiently
good results to warrant its use and that of the legal apparatus
needed to administer it? In some instances, as it will be shown, the
legal enforcement of morals is a farce, and sometimes a nuisance,
because certain crimes are undetectable and certain prohibitions are
simply unenforceable. It would, therefore, seem right to say that
however necessary it is to legally enforce some aspects of morality,
if the law cannot supply the appropriate weapons, it is better to
leave the area unregulated rather than to adopt unenforceable rules.
But let us face the question as a whole, and see how the problems
of legal enforcement of morals actually arise.
The recent years have provided legal philosophers with many
good cases and problems concerning the legal enforcement of morals:
the most famous are the Wolfenden Report 4 and the Ladies’ Directory
3 Those definitions are further considered infra, at pp. 27 ff.
4 Report of the Committee on Homosexual Offences and Prostitution, Cmnd.
247, (London, 1957).
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THE SO-CALLED HART-DEVLIN CONTROVERSY
11
case r (also herein referred to as the Shaw case), which have been
used as guideposts in the debate, and have been widely publicized.
However, as an illustration of the fact that this question is far
from settled, a freshly rendered judgment of the Supreme Court of
Canada in the case of Klippert v. The Queen 6 will be used as the
starting point of the present analysis. It shows how, just when
the Parliament of the United Kingdom was acting upon the Wolfenden
Committee’s recommendations after ten years by repealing the
criminal prohibition against homosexual acts between consenting
adults in private, the Supreme Court of Canada affirmed a judgment
which not only applied the Criminal Code of Canada concerning
homosexual acts, but also interpreted its terms so as to include
in the category of “dangerous sexual offenders.’ 7
homosexuals
Consequently, it sentenced the accused to preventive detention that
could last for life.
Klippert v. The Queen
The facts of the case were very simple. The defendant, Klippert,
was not caught in an indecent act, but had told the police, while
being questioned about some other matter, that he had been a
homosexual for twenty-four years. He was subsequently convicted
on four charges of gross indecency involving homosexual acts with
four different persons. His first sentence of three years was later
replaced by a sentence of indefinite (preventive) detention. At no
point was there any suggestion of violence or offences against
children, or offenses committed in public, though the defendant
admitted being a homosexual for so many years. All convictions
against him stemmed from private acts with consenting adult males.8
The argument before the Supreme Court of Canada centered
around the definition of a “dangerous sexual offender”
in the
Criminal Code of Canada, as a result of which the preventive
detention sentence could be administered. The final decision was
5Shaw V. Director of Public Prosecution, [1962] A.C. 220 (H.L.);
[1961]
2 All E.R. 446 (Ii.L.); [1961] 1 All E.R. 330 (C.A.), sub nomine, 1egina v.
Shaw; see also the recent obscenity and pornography cases in the U.S.A.: Roth
V. United States, (1966), 354 U.S. 413; Memoirs v. Massachusetts, (1966), 383
U.S. 413; Ginzburg v. U.S., (1966), 383 U.S. 463; Mishkin v. New York, (1966),
383 U.S. 502; Magrath, C.P., The Obscenity Cases: Grapes of Roth, [1,966] The
Supreme Court Review, 7; Elias, E.A., Sex Publications and Moral Corruption:
The Supreme Court Dilemma, (1967), 9 William & Mary L. Rev. 302.
GKlippert v. The Queen, [1967] S.C.R. 822.
7S. 659 (b) Cr. C.
8 See the medical evidence, cited by Cartwright, J., at pp. 827-828.
McGILL LAW JOURNAL
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reached by a majority of the Court (three to two), based on an
interpretation of the terms “dangerous sexual offender”. The Code
provides that the provision is aimed at persons who constitute a
“danger to others”, but the majority found that the Code’s reference
to further sexual offences 9 that might be committed by a previously
convicted person was an “alternative element” to that of the danger
of injury to others. Mr. Justice Fauteux, speaking for the majority,
said:
With deference, I cannot either agree with the view that the intent and
object of the provisions dealing with dangerous sexual offenders, is solely
to protect persons from becoming the victims of those whose failure to
control their sexual impulses renders them a source of danger and that
to apply the definition to a person, who is not to be a source of danger,
would give the definition an effect inconsistent with the intent or object
of these provisions. 10
On the other hand, the two dissenting judges found that the
Code’s reference to further sexual offences must read as relating
to danger to others; otherwise, it would be tantamount to saying
that a person who is not dangerous must nevertheless be regarded
as dangerous:
It would be with reluctance and regret that I would have found myself
compelled by the words used to impute to Parliament the intention of
enacting that the words ‘dangerous sexual offender’ shall include in their
meaning ‘a sexual offender who is not dangerous’. 11
Cartwright, J., dissenting, cites lengthy extracts from the medical
and psychiatric evidence, showing that doctors had agreed that “there
was no danger of the appellant using violence of any sort or attempt-
ing coercion of anyone”, though they did foresee “the likelihood of
the appellant committing further acts of gross indecency with other
consenting adult males”. 12
9 Canadian Criminal Code: “s. 569 (b): ‘dangerous sexual offender’ means
a person who, (i) by his own conduct in any sexual matter, has shown a failure
to control his sexual impulses, and (ii) who (a) is likely to cause injury, pain
or other evil to any person, through failure in the future to control his sexual
impulses or (b) is dikely to commit a further sexual offence …. ” S. 661
(3):
“Where the court finds that the accused is a dangerous sexual offender it shall,
notwithstanding anything in this Act or any other Act of the Parliament of
Canada, impose upon the accused a sentence of preventive detention in lieu of
any other sentence that might be imposed for the offence of which he was con-
victed or that was imposed for such offence, or in addition to any sentence that
was imposed for such offence if the sentence has expired.”
‘ Fauteux, J., at pp. 834-835.
11 Cartwright, J., at p. 831.
12 At p. 829. Maxwell on Interpretation of Statutes, 11th ed., at pp. 58-59, is
also cited in support of the dissenting judges’ interpretation of the Criminal
Code; see Cartwright, J., at p. 830.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
13
The result, however, is that a homosexual is not only regarded
as a criminal by the Canadian Criminal Code, but also treated as a
dangerous sexual offender, and is being incarcerated for life as if
he constituted a danger to others and had no control over his sexual
impulses, although he was convicted for acts committed with con-
senting adults in private.13
One might say that the decision is a result of a narrow and literal
interpretation of the Criminal Code. Cries of “dark-ages dungeon”,
“ridiculous justice” and others have been heard in the House of
Commons as a result of the Court’s decision. Reference was made to
the Wolfenden Report and the new Act on sexual offences in the
United Kingdom,14 but the majority was left unmoved by such
precedents, in a case where it could have rendered a more lenient
interpretation of the Criminal Code.
(c. 60),
Whether the criminal law, with respect to sexual misconduct of the sort
in which appellant has indulged for nearly twenty-five years, should be
changed to the extent to which it has been recently in England, by the
Sexual Offences Act, 1967
is obviously not for us to say; our
jurisdiction is to interpret and apply laws validly enacted.15
Whether the view of the Supreme Court of Canada is that of
the majority of the Canadian population (criminal law being a matter
of federal jurisdiction in Canada) remains to be seen. A few weeks
following the Klippert decision, the Minister of Justice introduced a
series of new amendments to the Criminal Code, which would have
the effect, inter alia, of making the Canadian law relating to homo-
sexual practices identical with the new English Act of 1967,10 and
of liberalizing the law relating to abortion. At the time of the writing
of this paper, Parliament had not yet studied this Bill, but comments
from the press and other organized social, professional and religious
groups suggest that the new reform might be the object of stormy
debates before it is carried out. – a It will be yet another occasion for
13″If the law on this subject matter is as interpreted by the Courts below,
it means that every man in Canada who indulges in sexual misconduct of the
sort forbidden by s. 149 of the Criminal Code with another consenting adult
male and who appears likely, if at liberty, to continue such misconduct should
be sentenced to preventive detention, that is to incarceration for life. However
loathsome conduct of the sort mentioned may appear to all normal persons, I
think it improbable that Parliament should have intended such a result.” Cart-
wright, J., at p. 831.
14 Sexual Offences Act, 1967, c. 60.
15 Fauteux, J., at p. 836.
16 See infra and the Wolfenden Report.
Ica The House of Commons has now started the study of the Bill, which has
been presented as one and undivided (omnibus) block, and has indeed been the
object of stormy and biased debates. Ed.’s note.
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Canada to review its common morality and decide whether it is
prepared to allow a maximum of freedom to its citizens, or will, as
a result of social or religious bias, require that the activities of the
individuals, although seemingly of a private character, be investigated
and perhaps punished by the arm of the law. The Canadian Parliament
has just recently started this review by finally liberalizing the law
concerning the death penalty.17 In the meantime, however, the
Supreme Court’s decision in the Klippert case remains as an example
of extremely stringent policy in the legal enforcement of morals,
which was perhaps not clearly foreseen by those who enacted the
criminal laws. This will be a good occasion for reshaping the Canadian
concepts on the relation between law and morality. This essay
purports to suggest some ideas and criticism concerning the legal
enforcement of morals.
Report of the (Wolfenden) Committee on Homosexual Offences
and Prostitution
The legal enforcement of morals was discussed by the Committee
on Homosexual Offences and Prostitution; 18 the actual recommen-
dations of the Committee, though relevant here, yield in value to the
actual principles upon which they rested. The Committee proceeded
to define what it considered was the nature and function of the law.
Through extensive examination of witnesses, however, it had to
admit that opinions differ so much as to what the law is, or as
to what is regarded as offensive, injurious or inimical to the common
good, or as to what moral, social or cultural standards are, that it
had to adopt standards acceptable to the community in general,
though not accepted by many citizens. The Committee has found
itself unable to succeed in discovering an “unequivocal public opinion”,
although several persons had suggested that there is a direct relation-
ship between the law and public opinion. The members had therefore
to reach “conclusions for ourselves rather than to base them on what
is often transient and seldom precisely ascertainable”.’ 9
The subject matter of morality, whether sexual or not, is not
always easily debated, and the conclusion of the Wolfenden Committee
reflects such a state of facts: this area is still one where the limits
of religious belief, political and social principles and behaviour have
not been determined, or at least not fully investigated, and where
17 See infra, n. 92.
18 The Committee was appointed on August 24, 1954, and reported on August
12, 1957; legislation followed in 1967, see, supra, n. 14.
19 Wolfenden Report, para. 16.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
15
the individuals are not prepared to state their views with the know-
ledge that their opinion is founded upon ascertained principles or
the past, what was good
even upon reasonable information. In
according to religion was accepted as socially good; but nowadays,
since morality and religion have been separated to a greater extent,
both philosophers and lawyers experience difficulties in ascertaining
the public good (public order) and the general moral sense (common
morality).
The Wolfenden Committee adopts the view that laws must be
acceptable to the general moral sense (as determined by their own
search) ,20 and that laws should not enter the field of “private moral
conduct” unless such conduct affects public good. On the other hand,
however, the report does not supply a definition of “crime”, or of
“public opinion.” To define a crime as “an act which is punished
by State” does not answer the question ;21 the notion of “crime”,
as distinguished from “sin”, will therefore be based on the purpose
and function of the law in the field of morals, that is,
(T)o preserve public order and decency, to protect the citizen from what
is offensive or injurious, and to provide sufficient safeguards against
exploitation and corruption of others, particularly those who are specially
vulnerable because they are young, weak in body or mind, inexperienced,
or in a state of special physical, official or economic dependence. 22
The law is the guardian of the public good, and has no function
“to intervene in the private lives of citizens, or to seek to enforce
any particular pattern of behaviour, further than is necessary to
carry out the purposes” of preserving public order.23 This general
concept of the law has led the Committee to further distinguish
between “public morality” and “private morality” or immorality
that is the private life of individuals as such:
There remains one additional counter-argument which we believe to be
decisive, namely, the importance which society and the law ought to give to
individual freedom of choice and action in matters of private morality.
Unless a deliberate attempt is to be made by society. acting through the
agency of the law, to equate the sphere of crime with that of sin, there
must remain a realm of private morality and immorality which is, in
brief and crude terms, not the law’s business. To say this is not to condone
or encourage private immorality. On the contrary, to emphasize the personal
and private nature of moral or immoral conduct is to emphasize the private
2o Idem.
21 Ibid., para. 13.
22 Idem.
28 Ibid., paras. 14, 52. In a famous quip, The Minister of Justice and now
Prime Minister of Canada said that: “The State has no business in the bedrooms
of the Nation”.
McGILL LAW JOURNAL
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and personal responsibility of the individual for his own actions, and
that is a responsibility which a mature agent can properly be expected
to carry for himself without the threat of punishment from the law.24
As a consequence, the Wolfenden Committee recommended, inter
alia, “that homosexual behaviour between consenting adults in private
should no longer be a criminal offence”, 25 because of the so-called
area of private morality. Apart from its own reasons, the Committee
cites the Report of the Street Offences Committee,2 which stated
that criminal law “is not concerned with private morals or with
ethical sanctions”. 27
But whatever the merits of the Wolfenden Report may be, and
notwithstanding its appeal to many (the report was finally im-
plemented by legislation in 1967), its underlying philosophical reason-
ing has not been convincing. The purpose is real; there is a need
for reforms in the legal enforcement of morals, but the juris-
prudential basis of the report is indeed a weak one. For example,
the existence of a so-called distinction between public and private
morality or immorality has yet to be demonstrated or even justified.
The main feature of morality relates to the distinction between
right and wrong; unless the legal enforcement of morals purports
to regulate the private lives of individuals, all morality is necessarily
public, whether the act is done in private or in public. “Private
morality” does not exist; “wrongful” acts done in private relate to
“public” morality. The Committee’s position would be indefensible if
its main principle was applied to some other fields of morality and
of legal enforcement of morals; such crimes as incest between con-
senting adults in private, euthanasia or murder voluntarily consented
to by the victims, and attempted suicide are examples of “wrongful”
(i.e. for the purposes of the debate) acts between consenting adults
in private which would fall within the Committee’s notion of private
morality. Yet, our legal system has been allowed to intrude into
those areas of would be private immorality to bring such acts under
the effects of the law. It is not too early to say here that the
Wolfenden Committee’s underlying distinction between public and
private morality did not lie on proper foundations, and that indeed
it constitutes an artificial theory.
On the other hand, it is useful to mention here that the Com-
mittee did not believe in the decay of society and civilization as a
24Ibid., para. 61.
25 Ibid., para. 62.
26 Cmd. 3231 (London, 1928).
27 Wolfenden Report, para. 226.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
17
result of a relaxation of morals; an idea which was put forward in
the Shaw case and by some legal writers.28
Although the Wolfenden Report was not implemented until more
than a decade following its publication, it was obvious that this
report, together with the report of the Street Offences Committee,
would provide enough substance for lawyers and philosophers, and
indeed for the general population, to think about during those past
years. The Wolfenden Committee actually predicted the need for a
new interpretation of the notion of enforcement of morals as a result
of the recommendations. For example, the ban on street-walking
resulted in an increase of other means of advertising prostitution. 29
The Ladies’ Directory case came in its place in the evolution of the
legal enforcement of morals. However, the outcome of the Shaw
case does fit into the pattern suggested by the Wolfenden Committee.
Shaw v. Director of Public Prosecution.”0
It may be said that the decision of the House of Lords in the
Shaw case is the ultimate result of a zealous performance by the
Director of Public Prosecution. Not long after the adoption of the
new Street Offences Act, 1956, Shaw published a Ladies’ Directory
which contained not only the names and addresses of prostitutes,
but also nude photographs and various notes relating to the repertoire
and perverse capabilities of the advertisers. If Shaw had been re-
munerating himself by the proceeds from the sale of a magazine
containing only the names, addresses and telephone numbers of
prostitutes, he would have committed no specific offence; but the
directory also contained materials which made it an obscene libel.
By taking payment from the prostitutes themselves, Shaw committed
the statutory offence of living “wholly or in part on the earnings
of prostitution”. 31 As the publisher of the magazine, Shaw was prose-
cuted under three separate counts: (a) living on the earnings of
to
prostitution; (b) publishing obscene materials;
corrupt public morals. The last count was very likely added by the
Director of Public Prosecution because it was felt that the first two
(c) conspiracy
28 Ibid., para. 54; see infra, Shaw v. D.P.P.
29″Another possible consequence is an increase in small advertisements
in
shops or local newspapers, offering the services of ‘masseuses’, ‘models’ or ‘com-
panions’; but we think that this would be less injurious than the presence of
prostitutes in the streets.” Wolfenden Report, para. 286.
30 Shaw v. D.P.P., [1961] 2 All E.R. 446 (H.L.), (hereinafter referred to also
as: the Ladies’ Directory case or the Shaw case).
B1 Sexual Offences Act, 1956, 4-5 Eliz. 2, c. 69, s. 80(1); Devlin, P., The
Enforcement of Morals, (London, 1965), pp. 87-89, hereinafter cited as Devlin;
Hart, op. cit., pp. 7 ff.
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were weak, and to make sure that the accused could be cornered by
a broad interpretation of the law. The final outcome may have been
a surprise, however, for Shaw was convicted under all three counts.
The main instrument of his conviction was said to be the jury,
and many judges were happy to rely upon the jurors’ opinion as
being the only solution to this case:
(I) n the case of a charge of conspiracy to corrupt public morals, the
uncertainty that necessarily arises from the vagueness of general words
can only be resolved by the opinion of twelve chosen men and women. I am
content to leave it to them.8 2
This case was commented upon in various reviews and articles,
and it is not intended to duplicate those materials. However, it will
be useful for our purposes to restate some of its major themes. The
Courts, and especially the House of Lords, felt that the creation of
new (criminal) offences does not fall within their competence,
mainly because the citizens have a right to know in advance what
the law is, particularly the criminal law, and what deeds are pro-
hibited and punished.
On the other hand, the courts claimed a residual power to enforce
the supreme and fundamental purpose of the law, and saw themselves
as the custos morum of the state, as they were in the earlier days
of the Star Chamber, a power which, so they said, was maintained
well after the Chamber had been abolished.33 The courts must there-
fore be the guardian of public morals and cannot tolerate those
forms of immorality that could lead to the moral decay of society.
In the Shaw case, the House of Lords defined the “fundamental
purpose of the law” in connexion with the needs of morality; it did
not commit itself to drawing a division line between religious and
social belief, but in effect took for granted that religious principles
and Christian morality were an undivided part of the English society.
In order to protect those principles and maintain the social order,
the English law has retained such an offence as the conspiracy to
corrupt public morals, and it is the duty of the Court to see that
the law is obeyed. The majority of the judges did not think it
necessary to question the respective limits of “sin” and “crime”;
32 Per Viscount Simonds, [1961] 2 All E.R. 446, at 453.
3 “When Lord Mansfield, speaking long after the Star Chamber had been
abolished, said that the Court of King’s Bench was the custos morum of the
people and had the superintendency of offences contra bones mores, he was
asserting, as I now assert, that there is in that court a residual power, where
no statute has yet intervened to supersede the common law, to superintend those
offences which are prejudicial to the public welfare.” Per Viscount Simonds,
ibid., at p. 452.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
19
they were content with the principle that morality is a part of the
social or public order, and that an offence against morals was an
attack against society. Therefore, it was only natural to protect
society through the legal weapons available, and it was the duty
of the Court to act as the guardian of morality and social order.
In such cases as that under study, where it was necessary to apply
to a given set of facts the vagueness of such broad principles, the
judges were happy to leave the interpretation of the terms and the
application of the rule of law in the hands of a jury.
The judges seem to have had more concern for the adaptation
of the common law offence, namely conspiracy to corrupt public
morals, to the present situation. In this instance, the offence did not
“consist of the publication” of the directory, but of “an agreement
to corrupt public morals by means of the magazines which might
never have been published”. 34 They tended to adopt the narrow-
minded attitude of the trial judge who sees no other alternative but
to apply the law as it stands in the statute book to a clear-cut
situation.
Lord Reid, dissenting in the House of Lords, pointed out that
the Lords were reversing their own view, and were expanding the
very crime of conspiracy after they had ceased to extend offences
by individuals.8 5 The Court is in fact creating a new offence by the
extension of the doctrine of conspiracy; it must, according to the
Court’s reasoning, be a crime today to conspire to seduce a particular
man, and the offence cannot be limited to a conspiracy to corrupt
public morals.86 Owing to differences in opinions as to how far the
law ought to punish immoral acts which are not done in the face of
the public, the Court is not the proper place to settle that type of
argument. Parliament is the proper authority to deal with such
matters, and “where Parliament fears to tread it is not for the
courts to rush in”.37
Consequently, it is impossible to agree with the idea that the law
is whatever a jury thinks it ought to be. One must query whether
society as a whole is affected by the offence or conspiracy, or only
those who actually read the publication, or only a limited number of
persons among those readers. If there is no possible corruption, there
is no conspiracy at all, though conspiracy might have existed without
actual corruption if it was technically possible. Lord Reid does not,
however, complete his argument by a consideration of the fact that
34 Per Lord Tucker, ibid., at p. 466.
35 Per Lord Reid, ibid., at p. 457.
36 Ibid., at p. 458.
37 Ibid., at p. 457.
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prostitution and perverse practices are not prohibited as such; 8
the prohibition affects socially injurious manifestations of such
practices as, for instance, streetwalking and bawdy-house keeping.
Therefore, it is not a crime to indulge in prostitution, but it is an
offence to advertise oneself as a prostitute. One aspect of this case
was left undiscussed by the judges: it seems that if the directory
had contained only the names and addresses of prostitutes, there
would have been no conviction under the third count (or on the
second, for that matter). The nature of the document was changed
as a result of the addition of photographs and other mentions (not
reported or detailed in the Law Reports) (sic) relating to perverse
practices and individual specialties. It would then seem that the
publication of an ordinary directory would not constitute a con-
spiracy to corrupt public morals –
no more than the mere fact of
prostitution – whereas the publication of obscene photographs and
literature would. Fortunately, no one claims that there is any logic
to be found in such reasoning.
This case has, obviously, been under severe attacks, mainly
because of the stand of the House of Lords in the interpretation of
its own function as custos morum, and of the ancient Common law
offence of conspiring to corrupt public morals. Critics have noted
the small amount of discussion on the boundaries between crime and
sin, on the concept of morality and on the contemporary function
of the law as a weapon to enforce morals.3 9
The So-Called Hart-Devlin Controversy
Lord Devlin and Professor H.L.A. Hart have exposed their
personal views on modern morality and the enforcement of morals
in a number of writings. 40 The reader benefits from those essays in
many ways, since both writers have had the opportunity of comment-
38With such exceptions as sodomy and bestiality.
39 On the Shaw case, see further: Hart, op. cit., pp. 7 ff.; Hall Williams, J.E.,
The Ladies’ Directory and Criminal Conspiracy: The Judge as Custos Morum,
(1961), 24 Mod. L. Rev. 626; Goodhart, A.L., The Shaw Case, the Law and
Public Morals, (1961), 77 L. Q. Rev. 560; Mewett, A.W., Morality and the
Criminal Law, (1961-62), 14 U. of T. L. J. 213; Devlin, op. cit., pp. 87 ff.
40 See generally: Devlin, op. cit., pp. 1 ff., 86 ff., 102 ff.; Devlin’s book The
Enforcement of Morals includes the original conferences which had previously been
published elsewhere; chapters I, V and VI are especially reviewed here; Devlin,
P., Law and Morality, (1962-65), 1 Manit. L. S. J. 243; Hart, op. cit.; Hart,
Positivism and the Separation of Law and Morals, (1958), 71 Harv. L. Rev.
593; Hart, Social Solidarity and the Enforcement of Morality, (1967), 35 U. of
Chi. L. Rev. 1; Hart, The Use and Abuse of Criminal Law, (1965), 8 The
Lawyer 47.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
21
ing on one another’s comments of one’s own comments. The danger
in that type of debate is to enter into a mere battle of words; 41
other commentators have also joined the band-wagon, and at one
point the so-called controversy on the enforcement of morals could
have turned into a debate similar to the famous corporate personality
battle of earlier years.
But after all, is there such a thing as a Hart-Devlin controversy,
and if so, is it just a battle of words ? The author takes the view
here, after an examination of both propositions, that the prevailing
conclusion is that Lord Devlin and Professor Hart, and a few of
their followers, do not even speak the same language, and that it
is a juridicial and philosophical error to try and reduce to a single
concept the premises of a given system. Excessive “labelism” is one
of the abuses of contemporary jurisprudence. It is submitted that
too much energy has been devoted to the interpretation of the under-
lying meaning of the opponents’ words, and too little has been oriented
to constructive analysis and to the observation of facts. In this area,
however, Lord Devlin would emerge as the best contributor.42
Comparing Hart and Devlin is tantamount to opposing two
different systems; their approach to morality, their purpose and
even their vocabulary are different. The latter is looking for a modus
vivendi, seeing society as a group that needs organization and rules
for the behaviour of its members, whereas the former is concerned
with the definition of basic principles and the rationalization of the
human activity. Moreover, Hart’s primary concern goes to the indi-
vidual, whereas Devlin’s preoccupation is for society. Their theories,
in the end, are not that far apart; Hart deals with the opposition
between law and morality, while Devlin discusses the interplay of
law and morality.
Lord Devlin’s series of lectures on the enforcement of morals
are based on a general concept of society; society exists as a series
of facts, and enjoys the use of several means and weapons to main-
tain its existence and improve the standards of living of its mem-
bers. It has been said that Lord Devlin does not actually define
41 See inf’a, and Devlin, op. cit., p. 13, n. 1; Devlin, loc. cit., (1962-1965), 1
Manit. L.S.J. 243, at p. 254.
42 In his most recent essay on the legal enforcement of morals ((1967), 35
U. of Chi. L. Rev. 1), Hart proposes a distinction between the ‘classical thesis’,
the ‘disintegration thesis’ (attributed to Devlin –
of Devlin, pp. 94, 114) and
the ‘conservative thesis’ (see Dworkin, Lord Devlin and the Enforcement of
Morals, (1965-1966), 75 Yale L.J. 986). It does not appear, however, that this
new classification sheds more light on the problems of legal enforcement of
morals. It tends to hide the facts behind the men who discuss them and to
oversimplify the issues by the uses of words.
McGILL LAW JOURNAL
[VCol. 15
“society”, 43 whereas others criticize him for having based his theory
on a “confused definition of what society js”,44 id est, the notion
of “shared morality”. Both criticisms seem unjustified, because the
very concept of “society” is a very difficult one to enclose within
a formal definition.
There are as many notions of society as there are societies, and
notwithstanding those critics, Devlin’s view that a society “is a
community of ideas” is sufficient enough for the present pur-
poses. 45 Beyond that, Lord Devlin is more inclined to enumerate
what may be found in a society than to build up a final definition. 4
In the field of morality, there are some areas in which the law does
not interfere, at least not in most western countries. The law leaves
religion to the private judgment of individuals, and it is the same
with morals.
What went wrong in the Wolfenden Report, as Lord Devlin puts
it, is that as a result of an error of jurisprudence, the Committee
was looking for a single principle to explain the division between
crime and sin; as a consequence, it purported to ensure the protec-
tion of the individual instead of that of society. The Committee’s
definition of the function of the law is therefore incomplete and
misleading.
Although the law does not interfere with religion or morals, our
society is a Christian one,47 and as such, it cannot make its own
rules without regard to Christian morals. Crimes may be classified
into three categories: (a) regulatory offences, such as traffic viola-
tions; (b) criminal rules on moral precepts, such as the prohibition
of theft or murder; (c) criminal rules which tend to regulate “im-
morality as such”, like the laws on prostitution or homosexuality,
which have no other apparent justification but the regulation of
immorality as such. On the other hand, criminal law has been based
on traditional moral principles; for example, the victim’s consent
to a crime never constitutes an excuse on behalf of the accused. But
there are cases where there is more than a victim’s consent; there
can be a victim’s request. A person who wants to commit suicide,
for instance, could request the help of another to pull the trigger.
43 E.g. Ison, T. G., The Enforcement of Morals, (1967), 3 U. B. C. L. Rev. 263,
at 265.
4 4 Hart, op. cit., p. 82; Hart, loo. cit, (1967), 35 U. of Chi. L. Rev. 1, at pp. 3-4;
Devlin, op. cit., pp. 9-10; see infra, nn. 45, 46 and the text.
45 Devlin, op. cit., pp. 9, 89.
4 8 Devlin, op. cit.: “Every society has a moral structure as well as a political
one.. .”, at p. 9; “Without shared ideas on politics, morals, and ethics no society
can exist.”, at p. 10; see infra, and Devlin, p. 13, n. 1.
47 Devlin, generally, chapters I, V and VI.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
23
Similarly, euthanasia, suicide pacts, duelling, abortion, incest or
homosexuality can be said to relate more directly to the individual’s
morality than to social order; but the law denies the existence of
such “private morality” and makes it an offence against public order
and common morality to commit any such deed.
Lord Devlin asks three questions, the answers to which will
provide the proper rules for governing society and the individuals:
(a) has society the right to judge morals? Or, is there such a thing
as public morality, or are morals a matter of private judgment?
(b) If public morality is found to exist, then has society a weapon
to enforce its judgment? (c) If the answer to (b) is yes, then in
which cases will the weapon be used ?48
In the examination of the first question, it
is proposed that
every society has both a political and a moral structure, which are
not to be confused and which have to be protected. Political order
calls for one set of rules, moral order for another; any attempt to
weaken either should be punished with equal strength, because the
very existence of society is at stake.
Moral order should not be taken for religion or other manifes-
tations of human behaviour, but it may embody some patterns of
behaviour that have been borrowed from religion. For example,
marriage in our society is conceived on the very lines of the Chris-
tian marriage, not because our society as such is Christian, but
because it so happened that the majority that formed our society
was Christian, and that it was their thought to base the social
order on the same ideals. Therefore, the concept of marriage that
is part of our moral order is in essence monogamous, and society
has undertaken to protect it as such, because an attack against
marriage would constitute an attack against our social and moral
order.49 In that sense, sex offences such as bigamy, incest or homo-
4
8 Devlin, op. cit., pp. 7-8.
49 “Take, for example, the institution of marriage. Whether a man should
be allowed to take more than one wife is something about which every society
has to make up its mind one way or the other. In England we believe in the
Christian idea of marriage and therefore adopt monogamy as a moral principle.
Consequently the Christian institution of marriage has become the basis of
family life and so part of the structure of our society. It is there not because
it is Christian. It has got there because it is Christian, but it remains there
because it is built into the house in which we live and could not be removed
without bringing it down.” Devlin, op. cit., p. 9. Note in Devlin’s words the
idea that it is the man who takes a wife, and not the reverse, though man and
woman are supposedly equal in our society. But this also is part of the social
order and morality, and it takes more than philosophical ideas to make a shift
in the common belief.
McGILL LAW JOURNAL
[Vol. 15
sexuality, which amount to the rejection of the accepted notion of
marriage, are considered as crimes against the moral order, just
as treason is regarded as a crime against the political order. The
internal structures of society have to be protected; if they are per-
mitted to be undermined, then society might collapse. The idea of
“collapse” must, however, be understood in a philosophical sense.
Lord Devlin means that a society will cease to exist, but only to
become another society, based on different ideas; it is essential, owing
to human nature, that the notion of society include the sharing of
ideas –
political, moral and ethical. Substantial changes in the ar-
rangement of shared ideas may result in the total transformation
of such society.60
One may be bothered by Lord Devlin’s “natural law” approach
to social morality, or by his somehow obscure approval of authori-
tarianism 51 illustrated by references to traditional (i.e. religious)
morality, or his approval of the decision in the Shaw case. 2 On the
other hand, closer analysis of his views allows the reader to dis-
tinguish between the writer’s own feelings about which morality
should prevail in the (English) law today, and how the process of
acknowledging morality and enforcing morals should be defined.3
As a result of its internal structures, society has thus a right
to judge morals and protect its own existence. Morals are not a
matter of private judgment; all morality is public. The next ques-
tion is whether a given act of (public) immorality, done in private
or not, may cause harm to the moral or political structure of so-
ciety? Before he looks for an answer to his third question, Lord
Devlin is careful to see if there is a weapon available to punish
such acts in the first place. Indeed, what is the use of condemning
a person or banning a deed if the order cannot be enforced? He
thinks that the state not only has the proper weapons to protect
society, but also that it has all the weapons it may need, for there
is no theoretical limit on the power of the state to legislate against
immorality; its legislation would always fall under the good govern-
ment theory. Vice and treason are treated analogically, as actions
directed against social order. Therefore, since there is no private
50 See infra, and Devlin, op. cit., pp. 13-14; on the right of society to protect
itself, see also: Dworkin, loc. cit., (1965-1966), 75 Yale L. J. 986, at pp. 989 ff.
51 Ison, loc. cit., (1967), 3 U. B. C. L. Rev. 263, at p. 272.
52 See Devlin, op. cit., pp. 13-14; 18, 86 ff., 100; Devlin claims that Mill would
certainly have protested on Hart’s comments on paternalism and the enforcement
of morality; Devlin, loc. cit., (1962-65), 1 Manit. L. S. J. 243, at p. 247.
58 Devlin, op. cit., pp. 13, n. 1, 115-117.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
25
morality, a man’s sin cannot only affect himself; there are some
areas where society as a whole is less affected, such as drunken-
ness, but there are others where man’s sin directly affects the moral
structure, such as sexual offences. All areas of morality may, there-
fore, be the object of a special intervention of the state in order
to ensure the protection of society.
Which specific areas will actually be regulated by the state? The
answer to the third question rests upon a matter of policy. Each
society, owing to its own concept of public order (of., the notion of
shared ideas) will determine the areas in which it will allow the
state to intervene at all times, and those where intervention will
depend on particular circumstances. Lord Devlin proposes, as a
rule of thumb, that the general rule should favor the toleration of
a maximum freedom of every individual. Although there would be
shifts in the limits of acceptable tolerance, the general rule would
be sufficient to cover most cases. The real test would be that of
“private behaviour”, as against that of so-called “private morality”. 54
If the private behaviour of the individual is considered harmful to
society, then he should be punished as a criminal offender. The
actual criterion by which the harmfulness would be gauged is that
of the reasonable man, the man in the jury box or on the Olapham
omnibus. This is not the “rational man”, who is able to study the
rules of morality and rationalize the existence of society, nor the
intellectual or the expert, philosopher or lawyer, but the reasonable
person, whose reasoning will be a reflection of the general princi-
ples of right minded persons on morality and immorality. 5
Not too much logic should be looked for in the legal process;
individuals, and indeed society, have a natural abhorrence of com-
mercialized vice and homosexuality. Since the existence of society
depends on what ideas its members are prepared to share and toler-
ate, the ultimate judgment should normally be that of the average
member, or the average group of members, of society. Notwith-
standing the difficulties in ascertaining public opinion, the reason-
able man’s personal opinion seems more than sufficient for dealing
in matters of moral order.
54 As proposed by the Wolfenden Committee, op. cit., para. 61.
55 See Lord Devlin’s comments on the role of the educated in a democratic
society, op. cit., pp. 94-99; see John Stuart Mill, on the “tyranny of the majority”,
John Stuart Mill, On Liberty, (London, 1859), cited in The Six Great Human-
istic Essays of John Stuart Mill, Washington Square Press ed., p. 130; Rostow,
E.V., The Enforcement of Morals, [1960] Camb. L. J. 174, at p. 185; contra:
Dworldn, loc. cit., (1965-66), 75 Yale L. J. 986, at pp. 1000-1001, on feelings and
morality.
McGILL LAW JOURNAL
[Vol. 15
Criminal law should be used to set the minimum standards of
conduct of the individuals, whereas moral laws will set the maximum
standards of conduct. In some instances, the law will serve as de-
terrent, in others, as remedy; but the only acceptable criterion to
be used in order to protect the moral structure of society is that
of the “reasonable man”.
Now that the function of the state has been determined, one
would like to know what the relationship between law and morality
will be? Society being defined as a community of shared ideas, the
courts become the guardian of the community. John Stuart Mill’s
theories were not accepted in the nineteenth century” 6 because
England did not have a morality problem that needed such solu-
tions. The separation between law and morals was not welcomed,
because society had integrated its religious and moral principles
into its own structure. The concept of “harm to others” was, there-
fore, superfluous, since society was protecting itself as a whole, not
as a collection of individuals. This was also carried on in the Shaw
case 5 when the moral welfare of the state was submitted as being
the ultimate value of moral order.
Lord Devlin proposes a set of rules for the understanding of
the relationship between law and morality. In the first place, there
is a need for a sense of “right” and “wrong” in every society. In-
deed, no human relationship could subsist permanently without this
basic morality, or the ability to distinguish between right and
wrong. While on the other hand, the basic morality is a subjective
one, the general sense of right and wrong is universal; however, it
may be said that there are no “true” beliefs, but rather a number
of “common” beliefs, which form the core of common morality.
Secondly, there are, in fact, bad laws, bad morals and bad societies,
but it is not because a law or a society is a bad one that it is a
non-law or a non-society. Besides, the idea of “bad” is a relative
or a comparative one; a law might be a bad one because instead
of serving society, it destroys it. It is, therefore, bad, although it
is a valid law, and although many individuals may actually derive
personal profit from its immediate application. 5s Finally, although
56 See infra, on Hart.
57 [19611 2 All E.R. 446.
58,,No one now is shocked by the idea that the lawyer is concerned simply
with the law as it is and not as he thinks it ought to be. No one need be shocked
by the idea that the law-maker is concerned with morality as it is. There are,
have been, and will be bad laws, bad morals, and bad societies. Probably no
law-maker believes that the morality he is enacting is false, but that does not
make it true. Unfortunately bad societies can live on bad morals just as well
as good societies on good ones.” Devlin, op. cit., p. 94.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
27
one may theoretically conceive of morality and law as seperate ideas,
it is in practice impossible to isolate them. Reason cannot find truth
by its own operation; the law will inevitably be what the judge or
the jury think it is, or ought to be. The idea of toleration is, there-
fore, brought forward again in order to help both moralists and
jurists; morality is a question of facts. Whether the judge, the jury
or society as a whole (e.g. through the electoral voice) are prepared
to tolerate a situation is a matter of fact. If they are to tolerate,
then the weapons of the law will not reach the individuals; if they
do not tolerate, then society’s punishment will restore the moral
order.
The matter of punishment is one of the most difficult to ap-
preciate in the area of enforcement of morals, with respect to both
the nature and the quantum of punishment. Devlin does not adopt
Stephen’s retributive theory of punishment, but he does not explain
fully his opinion on the right of society to inflict pain or suffering
on offenders, except as an expression of public disapproval. On
the other hand, if one is to follow the author’s general theory,
once it is accepted that society has a right to protect its own moral
and political structures, the right to punish finds an explanation.
Forms and quanta of punishment will therefore be a matter of
common morality and public order, coupled with the “toleration
of the maximum individual freedom that is consistent with the
integrity of society”. 59
As opposed to Lord Devlin, who refers to the general sense
of right and wrong in society, Professor Hart seeks to rationalize
the human activity: the problem is “one of critical morality about
the legal enforcement of positive morality”. 60 Speaking of the in-
terinfluence of law and morals, he discusses the existence or inte-
gration of morality in the definition of a legal system, and introduces
the concept of critical morality. Throughout this analysis, however,
Hart pursues one goal –
the contemporary demonstration of the
validity of John Stuart Mill’s position on the legal enforcement of
morality –
although he expressly states that he does not approve
of all of Mill’s theories 61 and even acknowledges that Stephen’s 62
59 Devlin, op. cit., pp. 16 ff.; Hart, op. cit., pp. 34 ff., 59-60
(see infra);
Ginsberg, M., Book Review, [1964] Brit. J. of Criminology 283, at pp. 287-288;
see infra, nn. 75, 107.
6 Hart, op. cit., p. 20.
61 “I shall consider this dispute mainly in relation to the special topic of
sexual morality where it seems prima facie plausible that there are actions
immoral by accepted standards and yet not harmful to others. But to prevent
misunderstanding I wish to enter a caveat: I do not propose to defend all that
McGILL LAW JOURNAL
[Vol. 15
and Devlin’s theories may be more popular than Mill’s. 3 In short,
Mill’s stand was that immorality as such is not a crime; “the only
purpose for which power can rightfully be exercised over any
member of a civilized community against his will is to prevent
harm to others”. 64 In his own way, Professor Hart endeavours to
justify this principle and rebuke Lord Devlin’s (and others’) 65 theory
that morality should be envisaged in a positive way, 6 that is, to
Mill said; for I myself think that there may be grounds justifying the legal
coercion of the individual other than the prevention of harm to others. But
on the narrower issue relevant to the enforcement of morality Mill seems to
be right.” Hart, op. cit., p. 5.
62 Stephen, J. F., Liberty, Equality, Fraternity, 2nd ed., (London, 1874).
63 Hart, op. cit., p. 17.
64 Mill, op. cit., p. 135; Mill continues as follows: “His own good, either physical
or moral, is not a sufficient warrant. He cannot rightfully be compelled to do
or forbear because it will be better for him to do so, because it will make him
happier, because, in the opinion of others, to do so would be wise, or even right.
These are good reasons for remonstrating with him, or reasoning with him, or
persuading him or entreating him, but not for compelling him, or visiting him
with any evil, in case he do otherwise. To justify that, the conduct from which
it is desired to deter him must be calculated to produce evil to someone else.
The only part of the conduct of anyone, for which he is amenable to society, is
that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind,
the individual is sovereign.”
65We shall not endeavour to review all opinions here; Hart has discussed the
view of J. F. Stephen, who in his time opposed Mill’s theory; see Hart, op. cit.,
pp. 34 ff., 49, 55 ff.; Stephen, J. F., op. cit., supra, n. 62 and especially the preface
to the second edition.
66 Here is how Devlin sees Mill’s approach to the legal enforcement of morals:
“While the political scientists and constitution-makers of the age were engaged
in separating Church and State, the philosophers came near to separating law
and morality. Austin taught that the only force behind the law was physical
force. Mill declared that the only purpose for which that force could rightfully
be used against any member of the community was to prevent harm to others;
his own good, physical or moral, was not sufficient warrant.
But this sort of thinking made no impact at all upon the development or
administration of the English criminal law. This was doubtless because no
practical problems arose. If there had been a deep division in the country on
matters of morals –
if there had been, for example, a large minority who wished
to practice polygamy –
the theoretical basis for legislation on morals would
have had to have been scrutinized. But the Englishman’s hundred religions about
which Voltaire made his jibe gave rise to no differences on morals grave enough
to affect the criminal law. Parliament added incest and homosexual offences
to the list of crimes without inquiring what harm they did to the community
if they were committed in private; it was enough that they were morally wrong.”
Devlin, op. cit., pp. 86-87;
“Now Professor Hart drafts his modifications so that he retains the two
principles (as interpreted by himself) and two out of the eight specific crimes,
No. i]
THE SO-CALLED HART-DEVLIN CONTROVERSY
29
ensure the protection of society in its moral structure. “Harm to
others” should be the test for the legal enforcement of morals,
although the enforcement of morality as such may be admitted in
some instances such as the punishment of cruelty against animals.
Hart summarizes Devlin’s thoughts in two formulas: (a) that
the law’s function is to “enforce a moral principle and nothing
else”; 67 (b) “that he appears to move from the acceptable proposition
that some shared morality is essential to the existence of any society
to the unacceptable proposition that a society is identical with its
morality as that is at any given moment of its history, so that a
change in its morality is tantamount to the destruction of a society…
the latter proposition is absurd. 68
… There is no evidence that the
preservation of a society requires the enforcement of its morality
‘as such’. His position only appears to escape this criticism by a
confused definition of what a society is.” 69 Such statements on the
part of the two writers have only led to disagreement. It would
appear, at first sight, that Professor Hart has not fully appreciated
the fact that Lord Devlin is not concerned about the enforcement of
morality as such, but that he is worrying about the protection of
society as a “going concern”.70
namely bigamy and cruelty to animals. One of the crimes, homosexuality, he
would abolish.” Devlin, loc. cit., (1962-1965), 1 Manit. L. S. J. 243, at p. 245.
As indicated by Lord Devlin, Mill was, at the time of his writings, attracted
more by the economic matters, and the prevailing laissez faire atmosphere than
by morals as such. Nowadays, morality seems to be a major preoccupation. See
ibid., at pp. 248-249, on Mill’s religion and common morality. Devlin concludes
his remarks on Mill as follows: “.. Mill’s doctrine is just as dogmatic as any
of those he repudiates. It is dogmatic to say that if only we were allowed to
behave just as we liked so long as we did not injure each other the world would
become a better place for all of us. There is more evidence for this sort of
utopia than there is evidence of the existence of heaven…”, ibid., at p. 253.
The other crimes referred to by Mill are abortion, buggery and bestiality, incest,
obscenity (pornography) and offences relating to prostitution and the commer-
cialization of vice. “Professor Hart is silent about all of them, although there
are indications that he would grant neither to abortion nor to the commercializa-
tion of vice the full protection afforded by the private realm.” Ibid., at p. 245.
67 Hart, op. cit., p. 32.
6sidem. p. 51.
69 Idem, p. 82.
70Lord Devlin stated: “I do not assert that any deviation from a society’s
shared morality threatens its existence any more than I assert that any sub-
versive activity threatens its existence. I assert that they are both activities
which are capable in their nature of threatening the existence of society so that
neither can be put beyond the law.
For the rest, the objection appears to me all a matter of words. I would
venture to assert, for example, that you cannot have a game without rules and
McGILL LAW JOURNAL
[Vol. 15
Whereas Lord Devlin held that the legal enforcement of morality
was necessary to protect the moral structure of society, and that
the test of morality was the reasonable man’s opinion, Professor
Hart suggests that ‘harm to others” is the only purpose for which
the law may be imposed on individual liberty. Strictly speaking,
we need not go further in order to confront Hart with the underlying
principles of his own theory; indeed, “harm to others” is meaningful
only when one has been able to determine what sort of “harm” will
hurt which “others.” In other terms, “harm to others” presupposes
a complete set of value judgments that will be found in each society’s
own structure and inner morality; the concepts of “harm” and
“others” can only by appreciated through a set of relative values,
which in turn must depend on a given notion of society as a
whole and as composed of individuals. Therefore, even though this
approach will not favorably approve of the enforcement of morality
as such, it will nevertheless approve of the use of the law to
compensate for harm done to others, on the assumption that this
particular society or group, through its common morality, sees harm
and evil in the consequences of a given deed. Instead of envisaging
the broad consequences of the deed with respect to the moral
structure of society, this type of valuation is limited to the more
immediate effects upon the individuals, as victims of the immoral
deed. But notwithstanding the number and depth of areas examined,
the appreciation necessarily requires a system of values which cannot
be but based on a given society’s concept of morality and legal
sanctions. One of the most obvious examples of the absence of “harm
to others” (on purpose, homosexuality will not be included here)
is that of suicide and of attempted suicide. Should only the interest
and well being of the individuals be concerned in the definition of
morality and of the legal enforcement of morals, unsuccessful at-
tempts to commit suicide would not fall under the rule of morality
since there would be no harm to others. Only in a broader concept
that if there were no rules there would be no game. If I am asked whether that
means that the game is ‘identical’ with the rules, I would be willing for the
question to be answered either way in the belief that the answer would lead to
nowhere. If I am asked whether a change in the rules means that one game
has disappeared and another has taken its place, I would reply probably not,
but that it would depend on the extent of the change.” Devlin, op. cit., p. 13, n. 1.
See Hart’s reply to this reply: (1967), 35 U. of Chi. L. Rev. 1, at p. 9, n. 21;
see infra, n. 79. “I think that the attempt by the (Wolfenden) Committee does
break down and that this is shown by the fact that it has to define or describe
its special circumstances so widely that they can be supported only if it is
accepted that the law is concerned with immorality as such.” Devlin, op. cit.,
p. 11; see Hart, op. cit., p. 52.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
91
of society and morality will such deeds be punished, therefore affect-
ing Hart’s theory on two grounds: by an implication that the indi-
vidual alone cannot form a proper and complete basis for the
appreciation of morality, and by the necessity of having a particular
and supple set of values by which morality and immorality can be
defined and enforced.71
Many difficulties are encountered in this process, however; it
has been said that such crimes as attempted suicide and abortion
are the object and result of attempts to enforce morality “as such”,7 2
or that the mere multiplication of so many examples of a species
do not allow the observer to draw a strict rule as to the existence
of a legal or moral rule. But, on the other hand, an unenforced or
an unenforceable law is nevertheless a law, and the actual enforce-
ment of some rules relating to morals (even mere fornification or
adultery) 73 is a form of enforcement of morality. Which morality,
though? It seems doubtful that the simple “harm to others” test
can be applied here. Another objection is the “paternalism” argu-
ment,74 where, for instance, criminal law never admits the consent
of the victim as a defence on behalf of the accused. Hart suggests
that far from being an instrument for enforcing moral principles,
the rules of the criminal law in such cases are only pieces of
paternalism, designed to protect individuals against themselves.
Whether this interpretation is good or bad, however, it does not
help the “harm to others” theory. Since it is unlikely that society
will change such rules of criminal law, it means that the “harm
to others” theory will have to be expanded to include harm to
oneself; this situation also shows the necessity of having a system
of moral values to define the idea of harm and, in this instance,
elucidate the would be paternalistic attitude of society. It would,
therefore, appear that harming others becomes the basis of “positive
morality” not in the narrow interpretation of the idea of harm, but
in the widest possible sense that society as a whole, and as composed
71 Newsweek magazine ran a cover story on morality on November 13, 1967,
“Anything goes: Taboos in Twilight”, and quoted a counsel of the U.S. Post
Office as saying: “Sex is troubling for society, but government ought to stay out
of it, unless there is widespread licentiousness which becomes harmful. The
Government is not here to enforce the Ten Commandments, and the wants of
society are generally twenty years ahead of government?’ (p. 77).
72 Hart, op. cit., pp. 25-26.
7 3 Idem, p. 27, citing Massachusetts statistics; many other states have such
laws which are enforced from time to time, as a result of either public or private
action. The Playboy Foundation has pledged its resources and services for helping
those who are the victims of such laws.
74 See supra, n. 52.
McGILL LAW JOURNAL
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of individuals, is concerned both about its own structure and about
the well being of its members. The notion of harm would definitely
be linked to a system of moral and social values.
This becomes particularly evident in the area of punishment.
Punishment, and the threat of punishment, are intended to prevent
further occurrences of evil and suffering or harm. Criminal law,
for example, is not principally directed to the prevention of evil; it
may prevent evil by fear of punishment, but otherwise it is only a
sanction. It is not only the suffering that must be considered here,
nor the immorality of causing pain or suffering, but the whole
process of cause and consequence, since one could not exist without
the other. When society has to consider the quantum of punishment,
it does so on the relative moral wickedness of the act done; it,
therefore, follows that the theory of punishment is also based on
a theory of values, that is to say, on a given concept of positive
morality, supplemented by legal weapons to ensure its enforcement.
The effectiveness of punishment results from the combination of
the evil of suffering with the evil of immorality in order to produce
a moral good. Once it is admitted that punishment should be related
to the relative moral wickedness of the offender and of the act
committed, the whole theory of “harm to others” collapses, or rather
is absorbed by the broader concept of morality as a social value,
based upon a society’s positive morality. Hart states the following:
(T)hey can in perfect consistency insist on the one hand that the only
justification for having a system of punishment is to prevent harm and
only harmful conduct should be punished, and, on the other, agree that
when the question of the quantum of punishment for such conduct is raised,
we should defer to principles which make relative moral wickedness of
different offenders a partial determinant of the severity of punishment.75
This dual approach to morality is not convincing: it distinguishes
theoretical values (e.g. the system of punishment) from practical
ones (e.g. the quantum of punishment). If the intention or the means
of the offender does not make the harm caused more harmful, then
unequal punishments can only find some justification in the morality
of the immoral, that is, in social values and the desire of enforcing
positive morality. Hart’s own terms would seem to allow such an
interpretation, and thus weaken the “harm to others” theory:
(I)n the theory of punishment, what is in the end morally tolerable is
apt to be more complex than our theories initially suggest. We cannot
usually in social life pursue a single value or a single moral aim, untroubled
by the need to compromise with others.76
75 Hart, op. cit., p. 37, and (1967), 35 U. of Chi. L. Rev. 1, at p. 7; Hart cites
Durkeim’s Division of Labor in Society; see nn. 59 and 107.
7 6 Hart, op. cit., p. 38.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
33
Professor Hart criticizes Lord Devlin’s theory as being a seamless
web; this is not much more than labelism; however, it is true that
all social moralities possess universal values 7 that are deemed
essential to society and common morality and “worth preserving
even at the cost in terms of those same values which legal enforce-
ment involves”.78 Devlin’s idea of society as a community of shared
ideas leaves much leeway for adaptation to social evolution, at least
so far as the “reasonable man” (the jury) is made the arbiter of
social evolution within the juridicial sphere. Moreover, perhaps the
seamless web concept would have helped Hart in the application of
the “harm to others” theory, which is not as simple in real life as
in the sayings of the writer.79 At the outcome, however, Hart and
Devlin do not stand very far apart, since both Hart’s “harm to
others” principle and Devlin’s protection of society’s moral structure
rest on a very similar necessity, that is, a system of values particular
to each society concerned. This debate on the legal enforcement of
morality relates itself to the problem of the relationship between law
77 Such as individual freedom, safety of life and protection from deliberately
inflicted harm. See Hart, op. cit., p. 70.
78 Hart, op. cit., p. 70.
79 See Devlin, op. cit., p. 13, n. 1, supra, note 70. “So, with permissiveness in
the area formally covered by restrictive morality, there would come increase in
violence and dishonesty and a general lapse of those restraints which are essen-
tial for any form of social life. This is the view that the morality of the individual
constitutes a seamless web.” Hart, loc. cit., (1967), 35 U. of Chi. L. Rev. 1, at
p. 13; see also pp. 9, n. 21, and 12-13; see Devlin, op. cit., p. 115;
However, any permissiveness or relaxation would take place in due course,
as society is able to bear the change, so that no real upset in social order would
result. If the evolution is rapid or revolutionary, society will react in another
way, trying to protect its security through a new social order. But to call the
human feelings a seamless web, or a vicious circle, means nothing if it is not
an acknowledgement of one’s incapability of discerning the fundamental motives
and pattern of human behaviour. See Hart, (1967), 35 U. of Chi. L. Rev. 1,
at p. 13; Hart is right in saying that he sees no evidence of desintegration, for
society rarely disintegrates, notwithstanding Devlin’s use of that word. Evolution
and transformation might have been more appropriate, as societies are under
a constant process of evolution, as a result of the continuous movement of persons
and ideas. Psychologists, sociologists and other scientific experts have yet to
explain the common morality, and one may doubt whether the pattern of human
and social behaviour will ever be explained and rationalized. We may be moving
from religious morality to ‘moral pluralism’ or to permissiveness, but those very
expressions already take us from the basic ideas of common morality and public
order to the more subjective realm of value judgements and political or social
systems. Any thesis chosen to explain the common morality will not do more
than explain what its author sees through his own deficiencies, and names will
not change the substance. One should be prepared to admit beforehand that his
suggestion is only one of the possible theories.
McGILL LAW JOURNAL
[Vol. 15
and morality, a perennial source of controversies among legal phi-
losophers; there is, however, in Professor Hart’s own words an
admission which could reconcile him with his opponents:
… liability for both civil and criminal
The influence of morality on law. –
wrongs may be adjusted to prevailing views of moral responsibility. No
‘positivist’ could deny that these are facts, or that the stability of legal
systems depends in part upon such types of correspondence with morals.
If this is what is meant by the necessary connexion of law and morals, its
existence should be conceded.80
Common Morality and the Toleration of Immorality;
Problems of guidance to the legislature and the judiciary
The Hart-Devlin debate has not been granted the same con-
sideration and interest by critics and legal philosophers; Devlin
himself refused to be carried further into what he called a battle
of words.8 1 On the other hand, he did not refrain from restating
his basic policy. Other critics have found themselves Devlinians or
Hartians, and sometimes both at the same time on different aspects
of the legal enforcement of morals.
On the subject matter of homosexuality, Professor Fuller found
the “argument quite inconclusive on both sides, resting as it does
on initial assumptions that are not made explicit in the argument
itself”.8 2 To him, this question is a far simpler one, and here he
raises Lord Devlin’s second question: there ought to be no law
making it a crime for consenting adults to engage privately in homo-
sexual acts, because such a law cannot be enforced. It would consti-
tute an open invitation to blackmail, so that there would be a gaping
discrepancy between the law as written and its enforcement
in
practice. This has, unfortunately, been the case, except in such far
fetched instances as the Klippert case 83 where a single person has
to pay for all the unattended cases. Fuller’s conclusion is of the
simplest kind: “I suggest that many related issues can be resolved
80 Hart, H.L.A., The Concept of Law, (Oxford, 1961), pp. 199-200; also p. 207;
“If, however, Professor Hart means that it ‘would be wrong’ for law-makers to
act on the basis of disgust alone; that they should make a separate and inde-
pendent judgment that a practice is injurious to society as well as odious; that
they should consider the implications of the half dozen qualifying principles
whose exposition requires almost one third of Sir Patrick’s
lecture,
then I fail to understand how his (Hart’s) position differs from that of the
Justice (Devlin).” Rostow, loc. cit., [1960] Camb. L.J. 174, at p. 189.
81 Devlin, op. cit., p. 13, n. 1.
82 Fuller, L. L., The Morality of Law, (New Haven and London, 1965), pp.
(Devlin)
132-433.
83 See discussion, supra, at pp. 11 ff.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
35
in similar terms without having to reach agreement on the sub-
stantive moral issues involved.” 84
To that the present writer would agree if the actual situations
calling for the legal enforcement of morals were quite simple, and
if society and its pressure groups could easily be convinced that
the law will be unenforceable, or that some other technical difficulty
rules out the necessity of finding agreement on, or of arriving at,
a definition of certain substantive moral issues. However, such issues
often arise at such times and under such circumstances when
society faces an internal crisis, or when an unexpected event calls
for urgent remedies where legislators or judges do not benefit from
the calm and cool reasoning of legal philosophers. Every generation
brings its own censors who claim that moral decay is ruining the
foundation of society; what happens, though, is that society itself
is under a constant evolution, through a purely natural and spon-
taneous process, and with it the concepts of public and moral order.
True, in a society that is totalitarian, as where, for example, religion
has been made one of the corner-stones of the political regime, the
legal enforcement of morals appears as a necessity and an essential
condition of this society’s survival. Further examples may be found
in some communist regimes, where one of the primary functions
of the law is to enforce morality, that is, morality adopted for the
time being by the “party”; regulations affecting hygiene and sexual
morality in state residences and housing, or waste of public property
are considered as essential to maintain the common morality. On the
other hand, in a “democratic” state where religion as such is not
the basis of the political order, but has been used as a model for,
say, defining the goals of a Christian political society, public order
will not be affected very seriously by the toleration of immoral acts. 85
The legal enforcement of morals raises the conflicts between
individual ethics and social morality. The evolution of morality has
not been, if at all, the sole factor of moral or social decay, whatever
these concepts mean. It is too easy to reject changes in the name
of “social decay” without due consideration for the underlying nature
of each society.”” Whether one adopts Devlin’s approach and stands
by the reasonable man’s opinion or feelings as to when should the
law be used to enforce morality, or Hart’s rational view that law
and morality should not be mistaken, with the exception that harm
caused by immoral deeds will justify the use of legal weapons, the
s4 Fuller, op. cit., p. 133.
85 Devlin, op. cit., p. 9.
86 On society, see Hart, loc. cit., (1967), 35 U. of Chi. L. Rev. 1, and the refer-
ences cited.
McGILL LAW JOURNAL
[Vol. 15
ultimate outcome will depend not on the method used but on the
system under examination. Since societies are constantly changing,
so will the relationship between law and morality and the basis for
the legal enforcement of morals. To a considerable extent, all laws
are connected with the legal enforcement of morals: regulations
concerning education, taxation, social welfare, old age, housing and
municipal administration are necessary to ensure the proper conduct
of society. The allocation of cost and other responsibilities reflect
the common morality and need the action of the law to be properly
executed8 7 Any society possesses such a common morality and has
the power to enforce it according to its own legal system; but the
legal enforcement of the common morality still leaves way for the
individual’s responsibility to make the necessary social and moral
judgments. Society will only seek the enforcement of the rules
when public order, as defined in each case, is endangered.
Legal philosophers have worried about the need for sufficient
guidance to legislators in dealing with matters of morality, and
especially when the public opinion is divided. Devlin has been
criticized for leaving the matter to the judgment of the reasonable
man, whereas Hart’s “harm to others” criterion leaves the matter
open to a further case of interpretation – what is harm, what is
the relation between immoral deeds and the harm caused, and how
to determine the quantum of punishment? Experience has shown,
however, that guidance is not always an easy answer to this problem;
depending on the type of society that has to be dealt with in the
first place, one must also consider the system of values attached
to the legislative and judiciary process, and then appreciate the
immediate circumstances in which morality or immorality has to be
valued. Democracy, free press and urbanization are factors which
influence the legal enforcement of morals. Knowing that a case of
homosexuality is to be tried in a small town with a highly religious
or conservative jury, one might not be prepared to recommend that
the man in the jury box be the final judge. On the other hand,
one might well be!
One should remember that “society” is as vague a concept as
“morality”, “justice” or “equality”, which are convenient abstractions
to work with, but are quite difficult to define in practice; since
both law and morality vary with the nature and structure of each
society, absolute or definitive rules in this field can only belong
to Utopia. Bias and prejudice are as much a part of our social values
as religion or social order. For centuries, our societies have been
8 7 Rostow, loc. cit., [1960] Camb. L.J. 174, at pp. 196-197.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
37
organized on the assumption that males are superior to females,
and white people superior to colored people; this has resulted in a
peculiar morality that affects individuals, spouses, families, social,
economic and political activities and countless particular rules of
behaviour, including the criminal law. Religious belief and natural
law have also been prime factors in the determination of common
morality.
But although most cases of immorality have some connexion with
sexual matters, not all immorality is sexual; in the medieval ages,
heresy used to be a classical example of immorality calling for the
use of legal weapons. Although such crimes as heresy and blasphemy
no longer exist in our society (at least for the time being), Lord
Devlin’s parallel between morals and treason is fully warranted.
Granted that society has both a political and moral structure, though
there might be other ways of classifying those aspects of social
activity, attacks against the very nature of society may call for
legal punishment. The notion of harm to others would be very
difficult to appreciate, for example, in the case of Luther or Marx
or other writers whose works have had deep and long lasting
effects on social and moral structures. Legal philosophy, to some
extent, must deal with problems ex tempore. The idea of harm
must not necessarily be taken as bodily harm, and the changing
of social structures as an instantaneous phenomenon. Homosexuality,
for example, may or may not result in what is called social and
moral decay; moreover, with the difficulties encountered in the prose-
cution of presumed guilty palties, the actual punishment of a
convicted homosexual is more of an exemplary sanction than of an
equitable punishment. But how is the damage or harm to society
being valuated? Time is a fairly small factor in this process. The
more critical one gets about the so-called criteria of morality, the
more one realizes how dependent the law is on social values and
common morality. After all, one may now very well question whether
Galileo or Luther were the authors of immoral deeds. Morality,
on the whole, would then be what each society, in its own time is
prepared to accept as moral, and unless one is prepared to accept
the existence of natural law, being outside the reach of human
beings as individuals or as groups, then one must accept that
morality, and, as a direct and necessary consequence, the legal en-
forcement of morality, is not susceptible of a fixed definition or
valuation. Since each society determines its own legal system, the
relationship between law and morals is thus the object of a constant
renewal, notwithstanding some elements of continuity. But even if
one went as far as to accept natural law as an imperative set of
McGILL LAW JOURNAL
[Vol. 15
rules, implied or not, social morality would, nevertheless, remain
as a determinant factor in the legal enforcement of morals.88
Problems of guidance to legislature and judiciary are not theo-
retical ones; that was the purpose of the Wolfenden Report. Just as
the United Kingdom has given itself a new Act on homosexuality 89
and abortion, 90 the Parliament of Canada is studying a new bill
dealing with those matters, and Governor Rockefeller, for the second
consecutive year, is trying to have the legislature of the State of
New York adopt a new law on abortion.9 1 The death penalty has
been the subject of lengthy debates both in Canada and the United
Kingdom, 92 and such topics as divorce, drug addiction and many
others are the constant subject of open debates at all levels of society
and law making agencies. It may be necessary to remember, however,
the exaggerated attention that has been devoted to sexual matters,
in connexion with the enforcement of morals. Tax swindlers or
traffic offenders, the most usual types of “upper class” wrongdoers,
are as much guilty of immoral deeds in our society as sexual offenders.
On the other hand, there have been cases of non sexual immorality
that have raised wide interest and concern: members of the legis-
lature or public servants accepting bribes or dissipating or using
public or political funds for their private use, persons who could
have rescued a child who was about to be drowned or hit by a
vehicle, but who abstained from doing what they could, and the
moral responsibility of cigarette manufacturers and their publicity
agents. The recent introduction of the breathalizer test in the United
Kingdom for preventing and punishing dangerous driving as a result
88 See supra, n. 70, ref. Devlin; Hart, op. cit., pp. 51-52, 82; Ginsberg, loc. cit.,
[1964] Brit. J. Criminology 283, at p. 289; Henkin, L., Morals and the Constitu-
tion: the Sin of Obscenity, (1963), 63 Col. L. Rev. 391; Schwartz, L. B.; Moral
Offences and the Model Penal Code, (1963), 63 Col. L. Rev. 669.
89 Sexual Offences Act, 1967, c. 60.
90 Abortion Act, 1967, c. 87.
91 California has a new abortion law since November 8, 1967; see a review
of the problem in the New York Times, January 8, 1968.
92 The law was voted in the House of Commons (Canada) on Nevember 23,
1967, abolishing capital punishment for murder, except in the slaying of police-
men and prison guards. The validity of the law extends to a period of five years
only. Death penalty remains in force for rape and treason. The prime minister
of Canada stated that capital punishment is not effective enough as a deterrent
for murder to justify its retention. The real causes of crime were slums, ghettos
and personality disorders. A former minister of justice, now in the opposition,
said that the preservation of society required that anyone who deliberately takes
a life has forfeited the right to live. – Party lines were raised for the voting.
New York Times, November 24, 1967, pp. 1, 22; House of Commons Debates,
November 23, 1967, V, pp. 4604-4606.
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
39
of drinking alcohol is yet another example; Sweden has had similar
dispositions for many years. Those are increasingly becoming matters
of public concern, thus forcing society to investigate its common
morality and the legal enforcement of morals.9 3
Modern society disposes of new instruments to take its own pulse;
at one time, the man on the Clapham omnibus could be allowed to
value the relative morality of a situation. Increased sophistication
may not take from him this essential role, but society will now
provide him with scientific apparatus and knowledge so that he can
perform his tasks. Sociological, psychological or economic enquiries,
research, the increasing use of medical or other experts, fact finding
agencies, trends and tendencies analysts will enable the man in the
jury box, whose personal knowledge is by definition insignificant,
and whose once reliable common sense is vanishing, to evaluate
the moral pulse of society. It may well be that Bentham’s censorial
jurisprudence, Hart’s critical morality or Devlin’s equity and reason
have all been absorbed by a society that is changing at an increasingly
rapid pace and that has to adjust its own rules to its new existence.
If, however, we are struck by the “medieval rhetoric” of Viscount
Simonds in the Shaw case 94 or the “I would rather stick to the law”
attitude of Fauteux, J., in the Canadian Klippert case, 95 we must
take into consideration some other factors, such as the personality
of those two men, the traditionally assumed rule that in England
and Canada the courts will not act as law making agencies when
Parliament could properly do so, and the prevailing social atmos-
phere of the time. The Shaw case followed a recent amendment of
the Sexual Offences Act, and it may have been feared, as is evidenced
by the prosecution’s brief, that an over-liberal test case might result
in abuses.9 6 The Canadian case, on the other hand, was dealt with
by the Supreme Court of Canada just after the homosexual amend-
ment in the United Kingdom, and just as the Minister of Justice
had announced oncoming legislative reforms in this area. This may
help to explain the decision.
But if the reasonable man’s view of morality can be acceptable
on the judicial level, who is going to fulfil his task in the legisla-
ture? This question would seem even easier to answer, because
93 See Newsweek, November 13, 1967, supra, n. 71.
04 [1961] 2 All E. R. 446 (H. L.).
05 [19671 S.C.R. 822.
96 On the other hand, the logic of the House of Lord’s majority reasoning and
of its traditional conception might have led it to take a more modest view of
its own role, on account of the recent activities of the legislator. See the debate
in the Columbia Law School Centennial (1953).
McGILL LAW JOURNAL
[Vol. 15
judicial cases have to be dealt with as they arise, whereas legislative
bills are usually introduced when the government is good and ready
to do so. In such regimes as totalitarian politics, the party’s ideology
or the internal bureaucratic structure normally provide answers to
moral problems. Immoral deeds exist in greater number because
those societies have a greater need to protect themselves, and legal
enforcement is hardly a problem as a result of a variety of efficient
weapons and remedies.
Democratic societies, on the other hand, often have to depend
on individual action for raising moral issues. Morality and the legal
enforcement of morals often have to be attacked by way of resist-
ance or civil disobedience before being the object of adapted legisla-
tion. In some instances, a government or political party will pledge
itself to the enactment of reforms affecting common morality and
public order, or, such reforms will be proposed in the form of a
private member’s bill. When reforms are long overdue, and there
is evidence that the legal rule is now beyond the common morality,
governments and parliaments will simply act upon the bill as a
matter of routine. If the issue is not all clear, a private member’s
bill is more likely, since no government will assume such responsi-
bility, for fear of being told by the electorate that it had moved
ahead of the common morality. Less doubtful subject matters are
likely to provoke endless debates or filibuster in Parliament, and
when the time comes for voting, party lines will be raised so that
each member will be allowed to act as a man in the jury box, using
both his common and political sense to vote upon the measure; the
common morality is well served by such a procedure, and so is the
government, whose party does not bear the responsibility for the
vote. American legislatures do not follow this pattern, but generally
attain similar results; bills are introduced by the government but
have to go through a complex pattern of committee and legislative
sessions where the common wisdom and morality is evaluated, and
congressmen do not necessarily follow their party lines in voting
on any bill, thus perpetuating the reasonable man’s common sense. 7
97 “The democratic system of government goes some way –
not all the way,
for no representative can be the mirror of the voters’ thoughts –
to ensure
that the decision of the law-naker will be acceptable to the majority, but the
majority is not the whole …
But under the second theory the law-maker is not required to make any
judgment about what is good and what is bad. The morals which he enforces
are those ideas about right and wrong which are already accepted by the society
for which he is legislating and which are necessary to preserve its integrity. He
has not to argue with himself about the merits of monogamy and polygamy;
he has merely to observe that monogamy is an essential part of the structure
No. 1]
THE SO-CALLED HART-DEVLIN CONTROVERSY
41
Politics would, therefore, appear as inseparable from morality.
However, one has to query whether, in the process of social and
moral evolution, there can be changes in morality. Natural lawyers,
and many legal philosophers would think that moral standards do
not shift: 98 they do not, so far as one is prepared to admit that
they come from a superior divine source, or are simply built into
human nature. Some aspects of morality, on the other hand, are
more easily questioned, and would seem to rest on a purely con-
sensual, or merely social, basis. Monogamy, for instance, although
practiced by most societies nowadays, is not, and has not been,
universal, as it has yielded to polygamy in areas where living con-
ditions made it useful or necessary. Although most societies are
more or less religious and have in some cases been greatly influenced
by their religious practices, it is obvious that religious morals are
not all alike, and that there tends to be an increasing division be-
tween the common morality of a given society and the religious
morals that have influenced its formation. Although adultery, forni-
cation and usury ranked equally as both sins and immoral crimes
in the medieval Christian society, the same are not always regarded
as sins by most contemporary societies.99
Whether morality and moral standards shift, or should be re-
garded as shifting, or not, is a matter which will very likely not
be solved, as long as human beings have limited means of knowl-
edge. In fact, this is more a matter of religious belief, and the
churches themselves have had to revise their concepts of morality;
Galileo’s case is perhaps the easiest to understand nowadays. What
worries us in a democratic society is how to assess the shift in the
social toleration of departures from moral standards. In the first
place, although there is a general feeling that there is a shift in
of the society to which he belongs. Naturally he will assume that the morals of
his society are good and true; if he does not, he should not be playing an active
part in government. But he has not to vouch for their goodness and truth. His
mandate is to preserve the essentials of his society, not to reconstruct them
according to his own ideas.” Devlin, op. cit., pp. 89-90; see also Ison’s rather
humoristic comment on how a bill on homosexual behaviour was voted in ‘Ruri-
tania’; loc. cit., (1967), 3 U. B.C. L. Rev. 263, at pp. 270-271; Dworkin, loc. cit.,
(1965-66), 75 Yale L.J. 986, at pp. 994-999, and 1002.
08 Devlin, op. cit., pp. 18, 5-7.
99 Henkin, lco. cit., (1963), 63 Col. L. Rev. 391, at p. 407. “No doubt a critical
morality based on the theory that all social morality had the status of divine
commands or of eternal truth discovered by reason would not for obvious reasons
now seem plausible. It is perhaps least plausible in relation to sexual morals,
determined as these so obviously are by variable tastes and conventions.” Hart,
op. cit., p. 73, and see pp. 7S-74.
McGILL LAW JOURNAL
[Vol. 15
tolerance, it is not all that easy to determine the swing and inten-
sity of such shifts. It is true that moral standards, that is the
individual’s attitude towards morality, change with each generation,
but there is no sure method of evaluating this phenomenon, since
modern communication media often tend to distort the available
information.
Surely, there is a tolerance shift; contraception, abortion, drug
addiction or homosexuality have all been at least accepted as topics
for open discussion, whereas earlier moral standards banned them
from “honest” circles. Yet, the traditional divisions remain be-
tween (a) common morality, (b) social tolerance to some form of
immorality and the changing of common morality, (c)
the legal
enforcement of morality, or the use of legal weapons to punish
immorality. Devlin’s preliminary question concerning the right of
society to judge morals and the existence of proper weapons to deal
with immorality now seem to have found answers. Common morality
is perhaps the most difficult to define, but also the least interesting
as regards the matter of legal enforcement. The lawyer and the legal
philosopher will want to know which immoral deeds society is not
prepared to tolerate, and which among those it is prepared to punish
expressly. It is almost impossible to assume any regular or phased
evolution; social tolerance cannot be predicted, and it is not always
easy to introduce or repeal a law dealing with morality or immo-
rality; it often takes a number of years before the two are permitted
to coincide, if ever.
Most critics of the Wolfenden Report agree in rejecting the
Committee’s test of “private morality”; Devlin suggests that a
test of “private behaviour” should be substituted, 100 and Hart sug-
gests that the “harm to others” idea should be retained. But is this
the proper approach to the enforcement of morals ? Of course, this
query takes place in a democratic context where society does not
require a special moral behaviour from its members, although some
writers seem to take for granted that there is some inherent rule
of private morality or behaviour that citizens should obey. This is
much more evident in the ‘area of sexual morality, and tends to
disappear almost entirely in other areas of morality, such as eco-
nomic or social behaviour (e.g. tax dodging), where the common
morality serves as the only criterion. In sexual matters, however,
the individual is given a particular duty to contribute to the com-
mon good by his own private behaviour, and it is this conduct that
will or will not be tolerated by the community.
100 Devlin, op. cit., p. 19.
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Apart from natural law or religious morality, so called private
morality has no bearing on common morality in a democratic society.
Indeed, all morality is social and serves social goals: there being
no such thing as private morality. Common morality will find its
manifestations through the members of the society, but whether a
deed is good or bad for one individual or for the society is not a
matter of private concern; it may be wrong in terms of religious
morality, but not necessarily in terms of social morality. The be-
haviour of individuals and the use of legal weapons to punish such
behaviour as it is judged socially immoral have to be considered
through society’s morality and agencies. For example, societies have,
at other times, regarded homosexuality as socially immoral; modern
societies are, however, faced with such a rule that has proven very
difficult to universally and equitably enforce. Certain countries have
now come to questioning whether homosexuality is after all a danger
for the public order and should be treated as socially immoral.
This is but one example of the shift in social tolerance towards
morality. There were some periods where homosexuality was re-
garded as a normal manifestation of sexuality and even as a military
advantage. 10’ Canada is now considering whether it should adjust
its criminal law to the common morality and adopt legislation simi-
lar to the recent United Kingdom Act. On the other hand, the Ameri-
can society has shown little sign that homosexuality would cease to
be regarded as a social evil, notwithstanding the action of pressure
groups and the social discrimination that results from the prevailing
social morality.10 2
There is, however, no strict rule that enables the legal philoso-
pher to advise his government on how to handle common morality
and the legal punishment of immorality. Laws are by no means
perfect instruments to deal with morality, and generally are either
too strict or too lenient; for example, laws prohibiting homosexuality
have never been efficient. One is always surprised to see that al-
though prostitution as such is not a criminal offence, the fact of
being a common prostitute is, but habitual male partners of female
common prostitutes are not prosecuted. The consent of a victim
cannot be raised as a defence by the accused. Those examples show
how imperfect the rules are, and yet, it is not very easy to make
better ones, that is, rules that would be adapted to the common
morality, and at the same time equitable and enforceable. The
government has a right and a duty to protect society and its moral
101 See Bertrand Russell, Human Society in Ethics and Politics, p. 99, on the
Spartan’s theory that homosexuality promoted courage in battle.
102 See the New York Times, November 26, 1967.
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values; in many instances it has been protecting groups and indi-
viduals against themselves. But it is not usually efficient to tell a
government that the laws it has enacted are ultra vires or that
its rules do not fit the common morality. It is far easier to show
it that its legislation, or its silence, is doing more harm than good,
or at least is doing it more political harm than good, and to con-
vince it that the rules for the enforcement of morals should be
changed. 0 3
Social gain or common morality should be the real test for the
regulation of morality and immorality. But here again, it is diffi-
cult to assess in advance the limits of change and of tolerance.
Society needs no law to make a father love his child, because it
would in any case be unenforceable; but on the other hand, there
are laws to force a father to support his children, although our
society, through its common morality, fails in this respect by not
forcing a father to support all his children, legitimate or not. Other
areas are still more difficult to appreciate. Why should attempts to
commit suicide be punished? Is it because it is an implied rejection
of society as such or because of the harm to others, though indirect?
How can such a crime be explained in terms of social goal, common
morality and social tolerance ?104 Deeds, moral or immoral, will be
punished by the law if the common morality and the limits of
tolerance require that they be punished. 05 The pattern is definitely
unpredictable, because social evolution takes place without uniform
phasing, and always on the basis of a given society’s common mo-
rality. One example will summarize this process. Birth control meth-
ods were traditionally banned as a result of the adoption by our
society of religious morality. Modern medicine has shown, however,
103 Devlin, op. cit., p. 117.
10 4 “No person is an entirely isolated being; it is impossible for a person to
do anything seriously or permanently hurtful to himself, without mischief reaching
at least to his near connections, and often far beyond them … If he deteriorates
his bodily or mental faculties, he not only brings evil upon all who depended on him
for any portion of their happiness, but disqualifies himself for rendering the
services which he owes to his fellow-creatures generally; perhaps becomes a
burden on their affection or benevolence; and if such conduct were very frequent,
hardly any offence that is committed would detract more from the general sum
of good. Finally, if by his vices or follies a person does no direct harm to others,
he is nevertheless (it may be said) injurious by his example; and ought to be
compelled to control himself, for the sake of those whom the sight or knowledge
of his conduct might corrupt or mislead.” Mill, op. cit., pp. 204-205.
105 Devlin comments: whether a man, on being accused of bigamy, pleads that
(a) he believed his wife was dead or (b) he believed bigamy is a good thing,
society will reject his defence, on moral grounds: “We can’t be certain, we may
be mistaken, but we must act upon our belief”. Such belief will determine the
limits of tolerance. See (1962-65), 1 Manit. L. S. J. 243, at p. 252.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
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that such methods can be harmless, and indeed useful. Overpopulated
countries may even reach a new social morality where it will become
immoral not to control births, whereas the very capitalistic coun-
tries who need substantial increases in population in order to keep
up with their economic structures will perhaps make it socially
immoral to over restrain births and endanger the community.
Should homosexuality, or abortion, or the use of contraception
be legally punished? One can build up an answer according to philo-
sophical or religious belief, but if one is to stand by sheer social
reasoning, there is no answer to be given, or at least no answer
that would be universally acceptable without due reference to social
structures and common morality. Although one may recommend that
the toleration of a maximum freedom be acknowledged to individuals,
and that the law represent the minimum intervention in the affairs
of the citizens, the real limits of tolerance, and the actual shifts in
legal restrictions, will reflect what each society, through its own
agencies, common morality and legal system, is prepared to tolerate
or punish.” 6
To that extent, the Hart-Devlin debate has been helpful, but not
as much as one would have expected. Any assumption of private or
religious morality will only divert the analyst’s attention from social
to individual problems of behaviour. Individual and social morality
may result in a vicious circle if the basis for argumentation is too
firm or narrow; otherwise, it may also become a matter of words
and definitions where the same terms do not correspond to the same
ideas. The problem here is not only philosophical; it also involves
the actual enforcement of common morality and the underlying
relationship between law and morality. Hart and Devlin have gone
a long way towards the explanation of the legal enforcement of
morals, but their debate is in fact a non-debate, for they hardly
speak from the same standpoint. Strong principles will succeed in
maintaining social order only if such principles have their roots
in society as a “going concern” and not as an abstract idea. The
implantation of strong moral rules in a society that advocates indi-
vidual freedom and open democracy will not yield expected results.
Any actions that are suspected of undermining society will have to
be assessed and weighted by such society, owing to particular cir-
cumstances. In the interpretation of the structure of society, Devlin
chose a group-oriented solution, whereas Hart remained closer to
o6 Devlin, op. cit., pp. 14 and also 115: “But when considering the degree of
injury to a public morality, what has to be considered is how the morality is
in fact made up and not how in the opinion of rational philosophers it ought
to be made up.” Mewett, loc. cit., (1961-62), 14 U. of T.L.J. 213, at p. 223.
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the individual. Moreover, experience teaches us that solutions to
particular problems often are the result of compromises on the part
of individuals and groups, thus making it still more difficult to
rationalize the rules of common morality.
It is not so certain that the evil of punishment, or even the threat
of punishment, is actually producing the desired social good, so that
in those cases where legal enforcement of morals is not even effec-
tively possible, the law should not be allowed to intervene in the field
of morality. 10 7 Moreover, punishment has never, as suggested by
Hart, resulted in “freezing” morality;1o8 society has, in many in-
stances, been able to resist punishment and create pressures so that
the law would be changed. In some cases, the very fact of punish-
ment or the severity of sanctions has constituted a factor that in-
fluenced the amendment or repeal of certain laws. Abuses flowing
as a result of undue or unjustified punishment are quite numerous;
the most famous are those which followed prohibition laws in the
United States, where disorder, violence, defiance of the law and
health hazards accompanied bootlegging and other practices by the
underworld. The laws on abortion have rendered still more dangerous
the extremely numerous cases of illegal abortions, because they
are performed by the unskilled under unsafe conditions; here again,
the law did not reach its original purpose. 0 9 Of course, punishment
is understood in the widest sense possible, but it traditionally refers
107 “Discussion among law-makers, both professional and amateur, is too often
limited to what is right or wrong and good or bad for society. There is a failure
to keep separate the two questions I have earlier posed –
the question of
society’s right to pass a moral judgment and the question of whether the arm
of the law should be used to enforce the judgment. The criminal law is not a
statement of how people ought to behave; it is a statement of what will happen
to them if they do not behave.” Devlin, op. cit., p. 20;
“The punishment for grave crimes should adequately reflect the revulsion
felt by the majority of citizens for them. It is a mistake to consider the object
of punishment as being deterrent or reformative or preventive and nothing else.
The ultimate justification of any punishment is not that it is a deterrent but
that it is the emphatic denunciation by the community of a crime.. .” Lord
Denning, before the Royal Commission on Capital Punishment, cited and criti-
cised by Hart, op. cit., p. 65. See supra, nn. 59 and 75, and the text.
108 See Hart, op. cit., p. 72; also Devlin, op. cit., p. 115: “There is no phased
programme, no planners to say that if free love is let in in the 60’s, the homo-
sexualist must wait until the 70’s.”
109 Facts on homosexuality, prostitution, drug addiction prove it; yet, our
society insists that every person who has been convicted once must have a
criminal record that will stain its reputation for life. Universities go farther
by asking their applicants if they have ever been arrested, although they may
have never been convicted. See Mewett, loc. cit., (1961-62), 14 U. of T. L.J. 213,
at p. 227.
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THE SO-CALLED HART-DEVLIN CONTROVERSY
47
to methods of individual coercion. Prisons, for example, have been
used to a greater extent in the very last centuries, and are under
close study as a result of doubts arising out of their usefulness.
Modern psychology and medicine have opened the way to better and
more positive ways of punishment and rehabilitation, although the
preventive sentence imposed to Klippert is perhaps one of the worst
examples of modern therapy. Punishment should be seen as the best
available instrument to ensure the security of society, the preven-
tion of further offences, and the well being and rehabilitation of
those who have gone morally astray. Here again, however, the ideas
of justice and equality would have to be examined in order to pro-
vide some satisfactory conclusion.
There seems to always be those who will claim that where there
is evil, there should be punishment, enforceable or not;11 the idea
of evil also has to be defined, as has been seen. Kings and bishops
have had their mistresses and mignons at times when sexual morality
was not in the least relaxed and when theft was punishable by death.
There still is a long way to go before morals, society and law can
be reconciled into a fully rational and yet equitable system.
Judges and legislators do not really need guidance or philo-
sophical guidelines; circumstances and social groups will evidence the
common morality and the shift in tolerance. The rest can only be
classified as theories. All are as good or bad as the others, that is,
insofar as it is impossible to appreciate their relative moral value.
However, their internal consistency and their relationship to human
behaviour enable the student to illuminate his choice between alter-
native ideals of life. On the other hand, precedents show us some
good and bad uses of social and legal powers, and some good and
bad uses of legal theories. The main difference between insurrection
and revolution is success, showing how social order and morality
can easily and dangerously become a matter of timing and expert
valuation of anticipated shifts in toleration, and reflecting the fun-
damental concern of man for freedom and security. 1
“What the
law maker has to ascertain is not the true belief but the common
belief.”112
11o See supra, Stephen and Hart, op cit., pp. 48 ff.
“”‘Freedom, equality, security of life and possessions, and security against
certain hazards of human existence must be harmonized in such a way as to
bring about a maximum of individual self-realization within the framework of
the common goals of humanity.” Bodenheimer, E., Treatise on Justice, (New
York, 1.967), pp. 103-104.
112 Devlin, op. cit., p. 94. The author would not be caught saying that there
is no true belief. It may, however, be right to say that the common belief is
that there is no true belief.
