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The Enforcement of Morals

Published online by Cambridge University Press:  16 January 2009

Eugene V. Rostow
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Extract

There may be a point in reviewing the controversy occasioned by Lord Justice Devlin's Maccabaean lecture from an American point of vantage. For the Justice's brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”

Type
Research Article
Information
The Cambridge Law Journal , Volume 18 , Issue 2 , November 1960 , pp. 174 - 198
Copyright
Copyright © Cambridge Law Journal and Contributors 1960

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References

1 “The Enforcement of Morals,” the Maccabaean lecture in Jurisprudence of the British Academy, 1959 (Oxford University Press, 1959); Prof. Hart, H. L. A., “Immorality and Treason,” The Listener, July 30, 1959, pp. 162–163Google Scholar; Richard, Wollheim, “Crime, Sin and Mr. Justice Devlin,” Encounter, November 1959, pp. 34–40.Google Scholar I shall refer hereafter to these three documents as “Devlin,” “Hart” and “Wollheim.”

2 Devlin, pp. 2, 18, 19, 20, 21.

3 Ibid., p. 4.

4 Hart, H. L. A., “Positivism and the Separation of Law and Morals,” 71Google Scholar Harv.L.R. 593, 598–599 (1958).

5 Devlin, p. 6: “As a judge who administers the criminal law and who has often to pass sentence in a criminal court, I should feel handicapped in my task if I thought that I was addressing an audience which had no sense of sin or which thought of crime as something quite different. Ought one, for example, in passing sentence upon a female abortionist to treat her simply as if she were an unlicensed midwife?”

6 Ibid., p. 9.

7 Ibid., p. 10.

8 Ibid., pp. 11–12.

9 Essays in Jurisprudence and Ethics (1882), Macmillan, pp. 278 and 353 (judge's note).

10 Devlin, p. 16.

11 Ibid., p. 13.

12 Ibid., p. 16.

13 Ibid., p. 17. Sir Patrick's exposition of the principles controlling the law-making process in this area appear at pp. 17–23.

14 Ibid., p. 17.

15 Ibid.

16 Ibid., p. 23.

17 Ibid., at p. 17.

18 Ibid., at p. 18.

19 Ibid., at p. 19.

20 Ibid., at p. 21.

21 Ibid., at pp. 23–25.

22 Ibid., at p. 19. See also pp. 11–12, 14–15, 22.

23 Ibid., at p. 23. See also pp. 11, 14–15. I have discussed the legal problems raised by laws regarding loyalty in “Needed: a Rational Security Program,” Harper's Magazine, July 1957, pp. 33–40.Google Scholar

23a I am indebted to Professor Helen Silving for the observation that in psycho-analytic terms sex crime and treason are related.

24 My views on several aspects of these problems are developed in “The Japanese-American cases—A Disaster,” 54 Yale L.J. 489 (1945), “The Democratic Character of Judicial Review,” 66 Harv.L.R. 193 (1952), “Needed: A Rational Security Program,” Harper's Magazine, July 1957, p. 33Google Scholar, “The Supreme Court and the People's Will,” 33 Notre Dame Lawyer 573 (1958)Google Scholar, “The Court and its Critics,” South Texas Law Journal, Spring 1959, p. 160.

25 Hart, at p. 162.

26 Ibid., at p. 163.

27 Ibid.

28 See pp. 179–182, supra.

29 “Positivism and the Separation of Law and Morals,” 71 Harv.L.R. 593 (1958), answered by Professor Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart,” 71 Harv.L.R. 630 (1958).

30 Throughout his lecture paragraphs start with the “is-ought” distinction and then the language shifts, referring to the subject-matter of the paragraph as the distinction between law and morals. See Hart, op. cit., supra, note 29, at pp. 597 (second full paragraph); 600–601 (first three paragraphs of Section II); p. 615 (“The third criticism of the separation of law and morals,” which starts Part IV, is to be compared with “I now turn to a distinctively American criticism of the separation of the law that is from the law that ought to be,” the opening words of Part III, on p. 606); p. 624 (“ the Utilitarian or ‘positivist’ insistence that law and morality are distinct,” referring to the theme of Part V, dealing with “the confusion of what is and what ought to be law,” p. 621). Professor Hart has told me that he did not intend to treat these distinctions, “is-ought” and “law-morals,” as exact synonyms or equivalents, and perhaps the root of my misinterpretation of his text lies in the possibility that he would offer a more limited definition than I should of the moral element in law. See pp. 612–613, where he warns of the danger of “thinking in a too simple-minded fashion about the word ‘ought.’ This is not because there is no distinction to be made between law as it is and ought to be. Far from it. It is because the distinction should be between what is and what from many different points of view ought to be. The word ‘ought’ merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral.” This comment, however, would not justify his usage of these two sets of words, even when fully developed. It would identify morals as one of the possible components of the legal “ought,” along with prudence, safety, habit, etc. But it would continue to exclude morals from the law that is. If I have misread Professor Hart's purpose, I regret it. My only defence is that at least for one reader his text is ambiguous.

31 Ibid., at pp. 621–624.

32 Ibid., at pp. 598–599.

33 I believe and hope that the preceding paragraph corresponds to Professor Hart's analysis, especially at pp. 627–629 of his Holmes Lecture, although it does not use the terminology he would prefer. Holmes' remark appears in “The Path of the Law” (1897) 10 Harv.L.R. 457, 459.

34 Hart, p. 163.

35 See pp. 179–182.

36 Devlin, at p. 17.

37 Ibid., at p. 18.

38 Hart, op. cit., supra, note 29, at pp. 615–621.

39 Hart, p. 163.

40 Devlin, p. 18.

41 Reynolds v. United States, 98 U.S. 145 (1878). See also Musser v. Utah, 333 U.S. 95 (1948)Google Scholar (state prosecution for advocacy of polygamy as a conspiracy to commit acts injurious to public morals).

42 See pp. 183–184, supra.

43 Hart, p. 163.

44 Devlin, p. 10.

45 Devlin, p. 15.

46 Wollheim, p. 40.

47 Ibid., p. 38.

48 Ibid., p. 36.

49 Ibid., p. 39.

50 Ibid., p. 38. Surely this point, if I understand it, is illusory verbal play. The most liberal of Liberal societies betrays some uniformities of behaviour it regards as right: i.e., to abstain from murder or polygamy. The question is, how much uniformity exists. And how much should be enforced by law? Does Mr. Wollheim mean that a monogamous society must allow Mormons or Mohammedans to practise polygamy, in the name of mutual toleration of different moralities, or lose its title to Liberalism?

51 Ibid., p. 39.

52 Ibid., p. 40.

53 Ibid.

54 The principles of law-making, discussed at pp. 179–182 above, for example, are barely mentioned in Mr. Wollheim's article, save as “vague and imprecise” ideas. Nor can I see any justification, in the light of those principles, for arguing that Sir Patrick's concept of society's right of self-preservation would apply as rigorously to amelioration as to corruption, and should thus be invoked against all change. See Wollheim, p. 40.

55 Wollheim, pp. 36–37.

56 Hobfeld, Wesley N., “Some Fundamental Legal Conceptions as applied in Judicial Reasoning,” 23 Yale L.J. 16 (1913), reprinted in W. W. Cook, ed., Fundamental Legal Conceptions and other Essays by Wesley Newcomb Hohfeld (Yale University Press, 1923).Google Scholar Professor Hart is of course an enthusiastic contemporary Hohfeldian.