Lord Devlin and the Enforcement of Morals

Abstract

No doubt most Americans and Englishmen think that homosexuality, prostitution, and the publication of pornography are immoral. What part should this fact play in the decision whether to make them criminal? This is a tangled question, full of issues with roots in philosophical and sociological controversy. It is a question lawyers must face, however, and two recent and controversial events-publication of the Wolfenden Report in England,' followed by a public debate on prostitution and homosexuality, and a trio of obscenity decisions in the United States Supreme Court2-press it upon us. Several positions are available, each with its own set of difficulties. Shall we say that public condemnation is sufficient, in and of itself, to justify making an act a crime? This seems inconsistent with our traditions of individual liberty, and our knowledge that the morals of even the largest mob cannot come warranted for truth. If public condemnation is not sufficient, what more is needed? Must there be some demonstration of present harm to particular persons directly affected by the practice in question? Or is it sufficient to show some effect on social customs and institutions which alters the social environment, and thus affects all members of society indirectly? If the latter, must it also be demonstrated that these social changes threaten long-term harm of some standard sort, like an increase in crime or a decrease in productivity? Or would it be enough to show that the vast bulk of the present community would deplore the change? If so, does the requirement of harm add much to the bare requirement of public condemnation? In 1958 Lord Devlin delivered the second Maccabaean Lecture to the British Academy. He called his lecture The Enforcement of Morals, and devoted it to these issues of principle.3 His conclusions