Skip to main content


Log in

A Failed Refutation and an Insufficiently Developed Insight in Hart’s Law, Liberty, and Morality

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript


H. L. A. Hart, in his classic book Law, Liberty, and Morality, is unsuccessful in arguing that James Fitzjames Stephen’s observations about the role of vice in criminal sentencing have no relevance to a more general defense of legal moralism. He does, however, have a very important insight about the special significance of sexual liberty.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others


  1. For my earlier discussions see my “Legal Moralism and Liberalism” (Murphy, 1995, and reprinted in Murphy, 1998) and my “Legal Moralism and Retribution Revisited” (Murphy, 2007a, and reprinted in Murphy, 2012).

  2. Although still operative in some jurisdictions, the common law mens rea or culpability conditions in the statutory definitions of crimes have undergone some changes since the 1952 publication by the American Law Institute of The Model Penal Code. These changes do not substantially affect the points I am making here, but those who would like to see what they are should consult Dressler, 2012.

  3. “Serious prejudice could result if medication inhibits the defendant’s capacity…to demonstrate remorse or compassion….In [capital cases] assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies” Riggins v. Nevada, 504, U.S. 127, 143–144 (1992) (Kennedy, J., concurring). See also Murphy, 2007b and reprinted in Murphy, 2012.

  4. Everyone who reads this essay is in far more danger of being killed by a negligent automobile driver than by a person who deliberates and then plans the killing. Also, most people who plan a killing will do so only in special circumstances unlikely to arise again and thus pose little future danger to society. If all we cared about in designing a system of punishment was harm we would surely punish the negligent killer more severely that the one who kills after premeditation. That we do not strikes me as rather strong evidence that the extra loss of liberty imposed on those who kill intentionally or with premeditation is imposed, not because of a concern with harm, but because of a widespread belief (perhaps mistaken) that such wrongdoers deserve it as a matter of retributive justice—deserve it because they exhibit a character that is more evil or vicious than the character exhibited by the negligent wrongdoer. The harm actually caused in both cases is the same—a wrongful death—and the future harm of the relevant conduct is likely to be greater in the case of the negligent killer than in the case of the intentional killer.

  5. See Murphy, supra note 4.

  6. As my colleague Michael White has observed in commenting on an earlier draft of this essay, the idea (expressed by Hart and later elaborated—as will be discussed later—by United States Supreme Court Justice Anthony Kennedy) that sexual expression is central to human happiness and indeed the meaningfulness of human life may be an artifact of the post-Freudian world in which we now live and is in that sense socially or culturally constructed. It is unlikely, to look at the distant past, that Achilles worried about such matters since the happiness and meaning of his life was a function of his honor—a concept that now, alas, strikes many people as archaic and irrelevant to their lives. And is it likely that Washington and Jefferson (and others that Americans tend to refer to as their “Founding Fathers”) would have put sexual fulfillment on their lists of what makes a human life meaningful and worth living? Would this have been a view widely held and expressed in Lincoln’s day—or even in Franklin Delano Roosevelt’s? Of course, since the law must generally deal with people as they currently are, the fact that sexual expression now has a centrality for most people (at least in first world countries) may be all we need to know in order to find it worthy of legal protection—a worthiness not necessarily undermined by the fact that such claimed centrality lacks a long history. For all I know, earlier people may have had equally deep and complex sexual longings but repressed them (at the cost of neurosis if Freud was right) or regarded them as not the sort of thing to be mentioned in public conversation or writing. If so, then the conceptualization of sexual liberty as something basic to human happiness could be thought of as an advance in human liberation and thus to be welcomed. For a philosophical exploration that is supportive of regarding sexual liberty for gays and lesbians as of great importance, see Calhoun, 2000. For a conservative philosophical view that supports some morals legislation but finds problems with Devlin’s defense of such legislation (but more problems with Hart’s case against such legislation) see George, 1995. Many of those who deplore the current dominance of liberal views about sexuality will argue that they debase our humanity and corrupt contemporary culture by openly welcoming depravity and (in religious terms) sin. As a matter of philosophy, those who hold such conservative views will probably argue for them from a foundation in natural law theory. This is not the place for a discussion of this highly complex and controversial theory of law and morality, but one may find a defense of the theory in George, 2001.

  7. I sometimes wonder if people such as Devlin and Hart had been brought up and socialized under the American legal and political culture they would have thought about liberty and its protection in a significantly different way.

  8. It could be argued that one protected liberty, the Eighth Amendment liberty from “cruel and unusual punishment,” is not subject to this compelling state interest test but is absolute—never to be encumbered for any reason. This—of course and alas—does not mean that the American government can never, for example, torture or subject those in its clutches to cruel treatment. It simply requires that it make a case that what it is doing is not punishment but rather something else—extreme techniques of interrogation, for example.

  9. Bowers v. Hardwick, 478 U.S 186 (1986). I have discussed this case in more detail in my “Moral Reasons and the Limitations of Liberty” (Murphy, 1999), reprinted in Murphy, 2012.

  10. Lawrence v. Texas, 539 U. S. 558 (2003).

  11. 505 U. S. 833 (1992).

  12. 410 U. S. 113 (1973).

  13. 517 U. S. 620 (1996).

  14. For a more detailed exploration of these and related points, see De Marneffe, 2009.

  15. See Murphy, 1999, for a brief attempt to distinguish moral from non moral reasons and good moral reasons from bad moral reasons.

  16. One of the most moving passages (at least to me) in J. M. Coetzee’s novel Disgrace (Coetzee, 1999) portrays the way in which the central character, David Lurie, makes a step toward his own redemption when he observes the bodies of euthanized dogs at an animal shelter being shoveled into bins and ovens like so much garbage. He sees this as disrespectful of the dignity of those dogs and takes a job at the shelter so that he can see that the dogs will be treated with dignity during the final days before their euthanasia and that their bodies will be disposed of with dignity. For those who (like me) find this a moving attachment to significant moral values, it will surely seem that similar concern with dignity should be felt toward human remains.


  • Calhoun, Cheshire (2000), Feminism, The Family, and the Politics of the ClosetLesbian and Gay Displacement, Oxford. University Press.

  • Coetzee, J. M. (1999), Disgrace, Viking Press.

  • de Marneffe, Peter (2009), Liberalism and Prostitution, Oxford University Press.

  • Devlin, Patrick (1959), Maccabaean Lecture “The Enforcement of Morals,” Oxford University Press.

  • Devlin, Patrick (1965), The Enforcement of Morals, Oxford University Press.

  • Dressler, Joshua (2012), Understanding Criminal Law, Sixth Edition, Lexis-Nexis.

  • Dworkin, Ronald (1993), Life’s Dominion, New York: Knopf.

  • Dworkin, Ronald (1997), Freedom’s Law: The Moral Reading of the American Constitution, Harvard University Press.

  • George, Robert (1995), Making Men Moral, Oxford University Press.

  • George, Robert (2001), In Defense of Natural Law, Oxford University Press.

  • Hart, H. L. A. (1963) Law, Liberty, and Morality, Stanford University Press.

  • Mackie, John (1991) “Retributivism: A Test Case for Ethical Objectivity” in Joel Feinberg and Hyman Gross (eds.), Philosophy of Law, Fourth Edition, Wadsworth Publishing Company, pp. 677–684.

  • Mill, John Stuart (1859), On Liberty, London.

  • Murphy, Jeffrie G. (1966) “Another Look at Legal Moralism,” Ethics, Volume 77, Number 1, October, pp. 50–56.

  • Murphy, Jeffrie G. (1995) “Legal Moralism and Liberalism,” Arizona Law Review, Spring, pp. 73-94.

  • Murphy, Jeffrie G. (1998) Character, Liberty, and LawKantian Essays in Theory and Practice, Kluwer, pp. 89–117.

  • Murphy, Jeffrie G. (1999), “Moral Reasons and the Limitations of Liberty,” William and Mary Law Review, 40 Wm. and Mary L. Rev. 947.

  • Murphy, Jeffrie G. (2000), “Religious Conviction and Political Advocacy,” The Modern Schoolman, LXXVIII, January/March, pp. 1353–1366.

  • Murphy, Jeffrie G. (2007a) “Legal Moralism and Retribution Revisited,” Criminal Law and Philosophy, Volume 1, Number 1, January, pp. 5–20.

  • Murphy, Jeffrie G. (2007b), “Remorse, Apology, and Mercy,” Ohio State Journal of Criminal Law, Volume 4, Number 2, Spring, pp. 423–453.

  • Murphy, Jeffrie G. (2012) Punishment and the Moral EmotionsEssays in Law, Morality, and Religion, Oxford University Press.

  • Rawls, John (2005), Political LiberalismExpanded Edition, Columbia University Press.

  • Stephen, James Fitzjames (1873) Liberty, Equality, Fraternity, London.

Download references


I want to thank Richard Dagger, Peter de Marneffe, Antony Duff, Massimo Renzo, Mary Sigler, James Weinstein, and Michael White for useful comments and discussion on earlier drafts of this essay.

Author information

Authors and Affiliations


Corresponding author

Correspondence to Jeffrie G. Murphy.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Murphy, J.G. A Failed Refutation and an Insufficiently Developed Insight in Hart’s Law, Liberty, and Morality . Criminal Law, Philosophy 7, 419–434 (2013).

Download citation

  • Published:

  • Issue Date:

  • DOI: