Abstract
In debating Patrick Devlin, H. L. A. Hart claimed that the “modern form” of the debate over the legal enforcement of morals centered on the “significance to be attached to the historical fact that certain conduct, no matter what, is prohibited by a positive morality.” This form of the debate was politically important in 1963 in Britain and America, and it remains politically important in these countries today and elsewhere; but it is not the philosophically most interesting form the debate can take. An older form of the debate appealed to natural law or critical morality. It centered on the question of whether political authorities could properly use the criminal law to enforce critical morality, including prohibitions on conduct that was not harmful or disrespectful to others. This paper engages with this older form of the debate. It offers some reasons for thinking that there is a presumption in favor of the view that it is a proper function of the criminal law to enforce critical morality, including that part of critical morality that is not directly concerned with preventing harm or disrespect to others. It then defends this presumption against some arguments recently pressed by Ronald Dworkin.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
H.L.A. Hart, Law, Liberty and Morality (Stanford University Press, 1963). Devlin’s contributions to the debate are collected in his The Enforcement of Morals (Oxford University Press, 1965). In large measure, the debate between Hart and Devlin was provoked by the 1957 “Wolfenden Report” commissioned by the British government on “Homosexual Offenses and Prostitution.”
Hart, Law, Liberty and Morality, pp. 23–24.
For a recent contribution to the debate in this vein see R. George, Making Men Moral (Oxford University Press, 1993).
The existence of critical morality can be rejected, of course. Various relativistic views of morality will find no place for it. This paper is premised on the falsity of such views.
Henceforth, when I speak of Hart or Devlin’s side in the enforcement debate, I mean to refer to opposing views on the proper legal enforcement of critical morality.
Generally, I will use the terms “legitimate” and “permissible” interchangeably. When I have moral requirements in mind, I will speak of moral duties.
Naturally, many will deny that any objects or activities are excellent in this sense. These people can still consider the implications these objects would have for the enforcement of critical morality on the assumption that they have the value here attributed to them.
See, for example, A. Ripstein, Force and Freedom (Harvard University Press, 2009).
Raz suggests, for example, that some forms of injury, such as the infliction of pain, may not diminish a person’s prospects or adversely affect his options, but they are still often regarded as harms. See The Morality of Freedom (Oxford University Press, 1986), pp. 413–414.
Hart, Law, Liberty and Morality, pp. 32–33.
J. Feinberg, Harm to Self, p. 16.
To avoid misunderstanding, by “defective will” I mean a will that is not sufficiently voluntary or autonomous. The voluntariness-reducing factors catalogued by Feinberg all point to defects of the will in this sense. See Feinberg, Harm to Self, pp. 150–153.
Living well is sometimes identified with moral rectitude. But this is not how I understand the idea. On my understanding, the moral saint may fail to live well. Living well requires one to lead a good life, and the best life is not identified with either the life highest in well-being or the most virtuous life.
For a statement of this principle see Raz, The Morality of Freedom, p. 194.
The discussion of “authenticity” below engages with some of the concerns that motivate the autonomy objection to legal moralism. But a full consideration of this objection will not be undertaken here.
Might it be a proper function of the criminal law to protect, but never to promote, the well-being of those subject to it? It might be said that, from the standpoint of the law, there is reason to prevent people from falling below a baseline level of well-being, but no corresponding reason to raise their well-being above the baseline level. I doubt that this view could be sustained, however. We would need some way to specify the baseline level of well-being that was determined independently of the law and the criminal law, and it is not at all clear how this could be done in a compelling way. Hence, I speak here both of protecting and promoting well-being.
T. M. Scanlon, What We Owe to Each Other (Harvard University Press, 1998), p. 119. The claims in this paragraph and next are indebted to Scanlon’s discussion of well-being and its limits. See especially pp. 126–143.
How is this possible? If succeeding in a rational aim advances a person’s well-being, then how could a person know that to succeed in the aim he must sacrifice his well-being to some extent? The answer is that, while the success of the aim will advance the person’s well-being in virtue of the fact that success in one’s rational aims contributes to well-being, it also may impose costs on the person and these costs could exceed the well-being gains that accrue from succeeding in the aim. In short, the person’s well-being is advanced along one dimension, but diminished more significantly along others.
J. Rawls, A Theory of Justice (1999 edition), p. 386.
Rawls claimed further that self-respect rests on confidence in one’s ability to successfully carry out one’s plans and intentions, as set by one’s conception of the good. Ibid., p. 386. However, it is less plausible to hold that this kind of self-confidence is necessary to living well. Despite having low confidence in one’s ability, a person may have worthy plans and she may succeed in them despite her lack of confidence in her ability to do so. Such a person could live well.
The attitude of self-respect can be distinguished from the value of self-respect. The former is judgment-dependent. The latter is fact-dependent. I have claimed that if one has the attitude of self-respect, then one will accept that its value is fact-dependent, although I have allowed that, consistent with the attitude of self-respect, one might think that deluded self-respect, while less valuable than nondeluded self-respect, remains valuable to some degree.
A person with good character would be disposed to respect excellence. But it does not follow from this that a person who was disposed to respect excellence, and who responded well to the impersonal reasons grounded by the value of excellent natural and cultural objects, would have a good character. Such a person might have many of the moral and prudential vices associated with bad character, but still respond very well to the reasons of excellence. And it is possible—think here of William’s discussion of Gauguin—that such a person could successfully pursue a sound conception of the good, one oriented toward the achievement of excellence. If so, then the link between having a good character and pursuing a sound conception of the good would be tight, but not water-tight tight.
For example, the kind of case mentioned in the previous note.
See my “Moral Environmentalism” in Paternalism: Theory and Practice, eds. C. Coons and M. Weber (Cambridge University Press, 2013).
R. Dworkin, Justice for Hedgehogs (Harvard University Press, 2011), p. 212.
Ibid.
Ibid., p. 209.
Dworkin rejects this kind of balancing, but his reasons for doing so are obscure. For criticism of Dworkin on this point, see R. Arneson, “Cracked Foundations of Liberal Equality” in Dworkin and his Critics, ed. J. Burley (Blackwell, 2004).
For Dworkin morality refers to how we ought to treat others, while ethics refers to how we ought to live ourselves. I do not myself accept this way of drawing the distinction, but I need to employ it here to articulate Dworkin’s argument.
There is a gap between defending a moral permission to use the criminal law for a certain purpose and defending the claim that there is a moral duty to do so. But often, if there is no moral duty to do so, then there will be no moral permission to do so either. The reason for this is that the use of the criminal law is a grave matter. To justify its permissible use, the moral considerations for using it must be compelling; and when these considerations are strong enough to justify a moral permission they often will be strong enough to justify a moral requirement.
R. Dworkin, Sovereign Virtue (Harvard University Press, 2000), p. 273.
Curiously, this is a point that Dworkin himself appeals to in defending the state’s role in funding the arts. See ibid., p. 274.
Criminal sanctions can stigmatize offenders and impose hard treatment on them. For this reason, some who are otherwise sympathetic to legal moralism may insist that soulcraft should never be pursued by the criminal law. Politics, they will grant, is properly concerned with soulcraft, but they will insist that we cannot help people live well by threatening or punishing them. Yet the case for legal moralism looks not only to the effects of sanctions on the offenders, but also to the wider effects on the ethical environment of the society in which it is undertaken. Even if the criminalization of a targeted activity would not help those who were prosecuted to live better lives, it might be justified all things considered because it would be effective in dissuading others from taking up pursuits that would ruin or mar their lives. On this point see P. Devlin, The Enforcement of Morals, p. 110.
Compare these remarks with the similar view expressed by G. Sher, Beyond Neutrality (Cambridge University Press, 1997), pp. 70–71.
An in-practice ban on soulcraft could be the prudent thing to do in some circumstances. Principles can be distinguished from what we might call general policies. The former apply to a very wide range of circumstances. By contrast, the latter are tailored to a more specific set of circumstances. General policies could exclude a whole category of state action, such as soulcraft, on the grounds that doing so, in the specified set of circumstances, would be the best response in light of all the relevant values. Nothing I have said in this paper implies that there could not be sound general policies that exclude soulcraft in some circumstances.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Wall, S. Enforcing Morality. Criminal Law, Philosophy 7, 455–471 (2013). https://doi.org/10.1007/s11572-013-9238-5
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-013-9238-5