Should the Law Attempt to Enforce Our Society's Morality? Does Our Contemporary Law Try to Do this at All?

Abstract

More than a century after Mill wrote On Liberty, the Hart-Devlin controversy revived the debate on the legislation of morality. Opposing morals laws because of their infringement of individual freedoms, Hart argued against “inducing [persons] to abstain from actions which deviate from accepted morality but harm no-one.” His chief opponent was Lord Devlin, who declared, “it is not possible to set theoretical limits to the power of the State to legislate against immorality.” The boundaries of the debate have shifted in subsequent decades. Few jurists would now agree with Devlin’s assertion that government should legislate morality regardless of the truth of that morality. Many would nevertheless argue that the law should attempt to enforce our society’s morality, when that morality is based on principles of practical reasonableness. The public interest is served through a society that encourages virtue and discourages vice. This view, espoused in previous millennia by Aristotle and Aquinas, has been articulated more recently by John Finnis. Despite the persuasive arguments of this ‘central tradition,’ however, Hart’s view seems to dominate our courts and legislatures. Defining a ‘morals law’ as one that governs private individual choices – usually regarding sexuality – by which no other person is harmed, Canadian courts have been heavily influenced by Mill. Although they have seen morality as an issue of ‘majoritarian taste’ that should only be legislated when there is harm to others, they have also referred to shared ‘Canadian values’ in upholding laws proscribing harmless wrongdoing. This inconsistency points to a general schizophrenia in Canada’s legal system: while the harm principle is relied upon in many ‘morals’-related cases, courts have rejected it when it is silent on so-called ‘victimless’ immorality that is socially unacceptable, relying instead on other factors to uphold morals laws. These factors or ‘shared Canadian values’ are none other than the central tradition’s ‘principles of practical reasonableness.’