Law. Freedom and Morality

Author: Hart
Publisher:
Publish Date: 2006-03-01
Features: On the occasion of this new printing of the book, I would like to offer some brief remarks; I believe these remarks will help to clarify the main purpose and scope of the book, especially for those parts misunderstood by some of my critics. At the same time, this is also a response to a major critique vigorously advocated by Lord Devlin. I have also included a list of more important and enlightening works related to the main arguments of this book. The three lectures that form this book were delivered at Stanford University in 1962, much like my earlier two articles, "Immorality and Treason" and "The Use and Abuse of the Criminal Law," which were originally intended as contributions to public discussion in Britain. This is a discussion about the scope of the application of criminal law, which was sparked by the publication of the Wolfenden Committee's report on homosexual offenses and prostitution in 1959. The report recommended the abolition of criminal sanctions against private, consensual homosexual behavior between adults, arguing that even if such behavior was widely considered immoral, proving the justification for applying criminal law required something more than immorality alone: merely labeling certain behavior as immoral and controlling it based on accepted social customs was not the duty of the law. The argument proposed by the Wolfenden Committee was criticized by Lord Devlin—then a Lord of Appeal in Ordinary and widely regarded as an excellent lawyer. In his Maccabean lecture delivered at the British Academy in 1959, titled "The Enforcement of Morals," he criticized the views of the Wolfenden Committee's report. These lectures, along with some of his other papers, were later collected in his 1965 published volume with the same title. His core argument is that, just as a widely recognized government is necessary for a society's existence, the shared moral norms of a society are also essential for its survival; and the justification for enforcing these moral norms through law is very simple: the law should be used to protect anything that is crucial to the existence of society. Lord Devlin found similarities between immorality—in the sense of violating the shared moral code of society—and treason. He argued that, for the same justificatory reasons, suppressing immorality is just as essential as suppressing subversive activities, and this is precisely the duty of the law.