Law and the Protection of Institutions

Abstract

It is a pity that the question about the proper purpose of law has so often been formulated in terms of ‘the enforcement of morals’. Not only is that issue highly charged with emotion, but the sense of the expression is unclear and, taken in any ordinary sense, its importance is marginal. What Lord Devlin seems chiefly to be arguing, when he supports the enforcement of morals, is that there are in any society certain central institutions which receive and deserve protection by law and that without such protection the society in question would disintegrate. His examples in our own society are monogamy and private property. It is true that these institutions are closely bound up with parts of our morality in two different ways: (a) certain moral prohibitions are defined in terms of them, e.g. adultery and theft; (b) a host of obligations is associated with them upon whose general acceptance and discharge their continuance depends. But it is only in an extended sense that one could describe the institutions themselves as parts of the common morality. It is possible, therefore, to hold that the law may properly be used to protect such institutions without necessarily taking the further step of maintaining that their protection requires and justifies legal prohibition of acts which offend against the associated morality. Professor Hart states this position clearly (a position which he does not himself accept): ‘What is essential and to be preserved is the essential core. On this footing it would be an open and empirical question whether any particular moral rule or veto, e.g. on homosexuality, adultery or fornication, is so organically connected with the central core that its maintenance and preservation is required as a vital outwork or bastion.’