Law, Freedom and Morality

Author: (English) Hart
Publisher:
Publication Date: 2006-03-01
Features: On the occasion of the book's new printing, 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 specially included a list of more important and enlightening works related to the main arguments of the book. The three lectures that constitute the book were delivered at Stanford University in 1962, just as my earlier two articles, "Immorality and Treason" and "The Use and Abuse of the Criminal Law," were intended as contributions to public discussion in Britain. This is a discussion about the scope of criminal law application, which was sparked by the publication of the Wolfenden Report in 1959, the report of the Committee on Homosexuality and Prostitution. 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 based on accepted social customs and controlling it is not the duty of the law. The argument proposed by the Wolfenden Committee was criticized by Lord Devlin at the time—he was a Lord of Appeal in Ordinary and widely regarded as an excellent lawyer. In his Maccabean lecture at the British Academy in 1959, titled "The Enforcement of Morals," he criticized the views of the Wolfenden Committee 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, the shared moral norms of a society are also necessary for its existence; and the justification for enforcing these moral norms through law is very simple: the law should be used to protect anything that is extremely important to the existence of society. Lord Devlin found similarities between immorality—meaning an infringement on the shared moral code of society—and treason. He argued that, based on the same justificatory reasoning, suppressing immorality is just as much the duty of the law as suppressing subversive activities.