Enforcement Of Morality Research Articles

Law and the Protection of Institutions

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.’

BOOK REVIEWS

Book reviewed in this article:CRIMINOLOGY Controlling Delinquents. Edited by Stanton Wheeler.CRIMINOLOGY The Social Organisation of Juvenile Justice. By Aaron V. Cicourel.CRIMINOLOGY Studies of Female Offenders. By Nancy Goodman and Jean Price. A Home Office Research Unit ReportCRIMINOLOGY Aspects of Social Control in Welfare States (Scandinavian Studies in Criminology, Volume 2). Edited by Nils Christie.CRIMINOLOGY Collected Studies in Criminological Research, Volume 2. European Committee on Crime Problems, Council of Europe, StrasbourgCRIMINOLOGY Who is the Criminal? By Richard Oerton.CRIMINOLOGY Crime in New Zealand. Department of Justice, New Zealand.CRIMINOLOGY Fifth Research Conference on Delinquency and Criminality. Quebec Centre of Criminology.CRIMINOLOGY A Validation Study of Hewitt and Jenkins' Hypothesis. By Elizabeth Field.PENAL PHILOSOPHY The Ethics of Punishment. By Sir Walter Moberley.PENAL PHILOSOPHY Punishment and Responsibility. By H. L. A. Hart.PENAL PHILOSOPHY Law, Morality and Religion in a Seculbr Society. By Basil Mitchell.PENAL PHILOSOPHY The Responsibility of Criminals. By William Kneale.PENAL PHILOSOPHY Law, Liberty and Morality. By H. L. A. Hart.PENAL PHILOSOPHY The Enforcement of Morals. By Patrick Devlin.PENOLOGY Prison. By Michael Wolff.PENOLOGY The Effectiveness of Punishment and Other Methods of Treatment. European Committee on Crime Problems, Council of Europe, StrasbourgPENOLOGY No Easy Road. By Sallie Trotter.PENOLOGY Prisoners' Progress—from mailbags to maturity. By Merfyn Turner.PENOLOGY Capital Punishment: Developments 1961 to 1965.PENOLOGY Growth to Freedom. By Derek Miller.SOCIAL STUDIES The Delinquent Solution. By David M. Downes.SOCIAL STUDIES The Professional Task in Welfare Practice. By Peter Nokes.SOCIAL STUDIES Time of One's Own. By Pearl Jephcott.SOCIAL STUDIES Studies in Child Development: 11,000 Seven Year Olds. By M. L. Kellmer Pringle, N. R. Butler and R. Davie.SOCIAL STUDIES Four Years On. By Stan Gooch and M. L. Kellmer Pringle.SOCIAL STUDIES Adoption—Facts and Fallacies. By M. L. Kellmer Pringle.SOCIAL STUDIES Family Advice Services. By Aryeh Leissner.SOCIAL STUDIES The Community's Children. Edited by Jessie Parfit.SOCIAL STUDIES People of the Streets. By Tony Parker.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY Crime and Insanity in England. Volume 1: The Historical Perspective. By Nigel Walker.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY The Guilty Mind: Psychiatry and the Law of Homicide. By John Biggs, Jr.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY Human Aggression. By Anthony Storr.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY Psychology and Social Problems. By Michael Argyle.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY A Study of Brief Psychotherapy. By D. H. Malan.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY Group Analysis. Volume 1, No. 1: November, 1967. Edited by S. H. Foulkes.PSYCHOLOGY, PSYCHIATRY AND PSYCHOTHERAPY Born to Trouble. By R. Lloyd and S. Williamson.THERAPEUTIC COMMUNITIES Studies in Environment Therapy (Volume 1). Edited by Arthur T. Barron.THERAPEUTIC COMMUNITIES Q Camp. Edited by Marjorie E. Franklin.THERAPEUTIC COMMUNITIES The Hawkspur Experiment. By David Wills.DRUGS Social Problems of Drug Abuse. Edited on behalf of the National Association of Probation Officers by Frank Dawtry.DRUGS Drugs and the Police. By Terence Jones.LAW AND THE POLICE A History of English Criminal Law and its Administration from 1750. Volume 4: Grappling for Control. By Leon Radzinowicz.LAW AND THE POLICE A History of Police in England and Wales, 900–1966. By T. A. Critchley.LAW AND THE POLICE Anglo‐American Criminal Justice. By Delmar Karlen, in collaboration with Geoffrey Sawer and Edward M. Wise.LAW AND THE POLICE Ransom: A Critique of the American Bail System. By Ronald Goldfarb.LAW AND THE POLICE Law and the Common Man. By C. H. Rolph.LAW AND THE POLICE Magistrates' Summary Jurisdiction—Guide to Powers of Punishment. By John A. Henham.LAW AND THE POLICE A Guide to Law and Practice under the Criminal Justice Act 1967. By David Napley.LAW AND THE POLICE A Short Guide to the Criminal Justice Act 1967. By Brian Harris.LAW AND THE POLICE Introductory Cases on Law and the Legal Process. By Bernard F. Cataldo, Cornelius W. Gillam. Frederick G. Kempin, Jr., John M. Stockton and Charles M. Weber.LAW AND THE POLICE Forensic Science. By H. J. Walls.MASS MEDIA The Press and the Protection of Youth. By H. Michaud and T. E. James.MASS MEDIA Attitude Formation and Change. By J. D. Halloran.BIOGRAPHY Romilly. By Patrick Medd.

Social Solidarity and the Enforcement of Morality

It is possible to extract from Plato's Republic and Laws, and perhaps from Aristotle's Ethics and Politics, following about role of law in relation to enforcement of morality: law of city state exists not merely to secure that men have opportunity to lead a morally good life, but to see that they do. According to this not only may law be used to punish men for doing what morally it is wrong for them to do, but it should be so used; for promotion of moral virtue by these means and by others is one of Ends or Purposes of a society complex enough to have developed a legal system. This theory is strongly associated with a specific conception of morality as a uniquely true or correct set of principles-not manmade, but either awaiting man's discovery by use of his reason or (in a theological setting) awaiting its disclosure by revelation. I shall call this theory the classical thesis and not discuss it further. From classical there is to be distinguished what I shall call the disintegration thesis. This inverts order of instrumentality between society on one hand and morality on other as it appears in classical thesis; for in this society is not instrument of moral life; rather morality is valued as cement of society, bond, or one of bonds, without which men would not cohere in society. This is associated strongly with a relativist conception of morality: according to it, morality may vary from society to society, and to merit enforcement by criminal law, morality need have no rational or other specific content. It is not quality of morality but its cohesive power which matters. What is important is not quality of creed but strength of belief in it. The enemy of society is not error but indifference.' The case for enforcement of morality on this view is that its maintenance is necessary to prevent disintegration of society.

REVIEWS OF BOOKS

Book reviewed in this article:CRIMINOLOGY Ventures in Criminology. By Sheldon and Eleanor Glueck.CRIMINOLOGY Criminology in Transition: Essays in Honour of Hermann Mannheim. Edited by T. Grygier, Howard Jones and J. C. Spencer.CRIMINOLOGY The Need for Criminology. By Leon Radzinowicz.CRIMINOLOGY Crime, Punishment and Cure. By Derrick Sington and Giles Playfair.CRIMINOLOGY Crime in a Changing Society. By Howard Jones.CRIMINOLOGY Crime and the Community. (A Survey of Penal Policy in New Zealand.) Department of Justice, New Zealand, 1964. pp. 114. 20s.PENOLOGY Studies in Penology. (Dedicated to the memory of Sir Lionel Fox, C.B., M.C., by the International Penal and Penitentiary Foundation). Edited by Manuel Lopez‐Rey and Charles Germain.PENOLOGY A Cure for Crime. By Kathleen J. Smith.PRISONS From Newgate to Dannemora. By W. David Lewis.PRISONS The Life and Death of John Price. By John Vincent Barry.MEASUREMENT AND STATISTICS The Measurement of Delinquency. By Thorsten Sellin and Marvin E. Wolfgang.MEASUREMENT AND STATISTICS The State of Crime in Scotland. By J. V. M. Shields and Judith A. Duncan.SOCIOLOGICAL STUDIES Prisoners and their Families. By Pauline Morris.SOCIOLOGICAL STUDIES Sociological Studies in the British Penal System. Edited by Paul Halmos.SOCIOLOGICAL STUDIES They All Come Out. By G. M. F. BishopSOCIOLOGICAL STUDIES Street Corner Research. By Ralph Schwitzgebel.SOCIOLOGICAL STUDIES The Unattached. By Mary Morse.SOCIOLOGICAL STUDIES Sociological Aspects of Homosexuality. By Michael Schofield.SOCIOLOGICAL STUDIES Trapped: Families and Schizophrenia. By Lloyd H. Rogler and August B. Hollingshead.JURISPRUDENCE The Enforcement of Morals. By Patrick Devlin.JURISPRUDENCE The Morality of the Criminal Law. By H. L. A. Hart.JUSTICE AND INJUSTICE Deadman's Hill: Was Hanratty Guilty? By Lord Russell of Liverpool.JUSTICE AND INJUSTICE Reprieve: A Study of a System. By Fenton Bresler.JUSTICE AND INJUSTICE Punishment without Crime. By Isidore Zimmerman.JUSTICE AND INJUSTICE The Plough Boy. By Tony Parker.JUSTICE AND INJUSTICE The Robbers' Tale. By Peta Fordham.YOUNG OFFENDERS Young Men in Detention Centres. (International Library of Sociology and Social Reconstruction.) By Anne B. Dunlop and Sarah McCabe.YOUNG OFFENDERS The Young Adult Offender. United Nations, 1965.YOUNG OFFENDERS The Child and the Magistrate. By John A. F. Watson.CARING FOR CHILDREN 44 Children Thinking Aloud. By F. G. Lennhoff and J. C. Lampen.CARING FOR CHILDREN 44 Maladjusted Boys. By Otto L. Shaw.CARING FOR CHILDREN 44 What Future? The Ladyholme Venture. By Edith Urch.CARING FOR CHILDREN 44 Child Care Officers and their World. By John Stroud.CARING FOR CHILDREN 44 Children in Homes. By Kenneth Brill and Ruth Thomas.CARING FOR CHILDREN 44 Childhood and Society. By Erik H. Erikson.CRIMINAL PSYCHOLOGY The Psychology of Crime. By David Abrahamsen.CRIMINAL PSYCHOLOGY Crime and Personality. By H. J. Eysenck.PSYCHOTHERAPY AND PSYCHOANALYSIS Group Psychotherapy: The Psychoanalytic Approach. By S. H. Foulkes and E. J. Anthony.PSYCHOTHERAPY AND PSYCHOANALYSIS The Life and Work of Sigmund Freud. By Ernest Jones. (Edited and abridged in one volume by Lionel Trilling and Steven Marcus.)PSYCHOTHERAPY AND PSYCHOANALYSIS Two Short Accounts of Psycho‐Analysis. By Sigmund Freud.PSYCHOTHERAPY AND PSYCHOANALYSIS The Integrity of the Personality. By Anthony Storr.PSYCHOTHERAPY AND PSYCHOANALYSIS Sexual Deviation. By Anthony Storr.PSYCHOTHERAPY AND PSYCHOANALYSIS Homosexuality. By D. J. West.

Lord Devlin and the Enforcement of Morals

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

Reviews

The Enforcement of Morals. By Patrick Devlin.Legal Systems and Lawyers' Reasonings. By Julius Stone.Law in Society. By Geoffrey Sawer. [London: Oxford University Press. Clarendon Law Series: edited by H. L. A. Hart.Advocacy in Our Time. By O. C. Mazengarb, C.B.E., Q.C., M.A., LL.D.Salmond on the Law of Torts. Fourteenth edition. By R. F. V. Heuston, M. A., LL. B., Professor of Law in the University of Southampton, of Gray's Inn and King's Inn, Dublin, Barrister‐at‐Law.Jurisdiction and Illegality. By Amnon Rubinstein.Die Erforschung des Sachverhalts im Prozess. By Erich Döhring, Professor at the University of Kiel.A Casebook of Administrative Law. By J. A. G. Griffith and H. Street.Tribunals and Inquiries―A Guide to Procedure. By Neville D. Vandyk.Capital Gains Tax. By G. S. A. Wheatcroft, assisted by A. E. W. Park and John E. Talbot.Corporation Tax. By Peter M. B. Rowland and John E. Talbot with Annotations to Finance Act 1965 by S. Michael Young and John Silberrad.Disarmament and International Law. By Allan Gotlieb.United Nations Forces. By D. W. Bowett with the assistance and collaboration of Dr. G. P. Barton, H. C. Carnegic, Wing‐Commander A. E. Cobus, J. G. Collier, M. Hardy, Dr. Rosalyn Higgins and Professor L. B. Sohn.The Theory of Nationalisation. By Konstantin Katzarov.Criminal on the Road. A Study of Serious Motoring Offences and those who commit them. By T. C. Willett.Curtis and Ruoff on The Law and Practice of Registered Conveyancing. Second edition. By Theodore B. F. Ruoff, C.B.E., Chief Land Registrar.Banking Law for Trustee Savings Banks. By C. L. Lawton, Barrister‐at‐Law.The Practitioner's Guide to Hire‐Purchase Cases. By Harold Brown, Q.C.The Mercantile and Industrial Law of Scotland. By J. J. Gow.The Quantum of Damages in Bodily and Fatal Injury Cases. Second edition. By M. M. Corbett and J. L. Buchanan.Law Relating to Hospitals and Kindred Institutions. Fourth edition. By S. R. Speller, O.B.E., LL.B.Introduction to Modern Hindu Law. By J. Duncan M. Derrett, M.A., PH.D., of Gray's Inn, Barrister‐at‐Law, Professor in Oriental Laws in the University of London, Tagore Professor of Law for 1953, University of Calcutta.Le Droit de Visits des Parents Séparés de leurs Enfants en Suisse, en France et en Allemagne. By Maurice Marthaler.A Deliktuális Felelösség a Társadalom és a Jog Fejlödésének Történetében (Delictual Liability in the History of the Evolution of Society and Law). By Ferenc Mádl.Das Deutsche Seerecht. First edited by Georg Schaps and others. Third edition. By Hans Jürgen Abraham.Criminal Law in Nigeria (excluding the North). By C. O. Okonkwo and M. E. Naish.

Book Review: The Enforcement of Morals

Book Review: The Enforcement of Morals

The Enforcement of Morals

The Author addresses the issue of morality, religion, philosophical beliefs and their relationship with the law, focusing on the influence that the moral law has on the various branches of law.

Recent Book: Law and Morals: The Enforcement of Morals

Recent Book: Law and Morals: The Enforcement of Morals

Inspiration and the Bible by Pierre BenoitO.P.. translated by J. Murphy-O'ConnorO.P.. and Sister M. KeverneO.P. Stag Books: Sheed and Ward. 9s.

INSPIRATION AND THE BIBLE by Pierre Benoit, O.P.RELIGION AND THE UNIVERSITY by Jaroslav Jan Pelikan and others.Twentieth Century Defenders of The Faith by Alec R. Vidler. S.C.M.The New Reformation? by John A. T. Robinson, Bishop of Woolwich. S.C.M.ST THOMAS AQUINAS: SUMMA THEOLOGIAE. Vol. VI (la. 27–32) The Trinity: Ceslaus Velecky, O.P.THE ENFORCEMENT OF MORALS by Patrick Devlin.THE TEMPLE AND THE COMMUNITY IN QUMRAN AND THE NEW TESTAMENT by Eertil Gärtner.ESSAYS ON NEW TESTAMENT THEMES by Ernst Käsemann; S.C.M.STUDIES OF THE HISTORICAL JESUS by Ernst FuchsTHELOGY AND PREACHING by Heinrich Ott.THE HEART OF MAN: ITS GENIUS FOR GOOD AND EVIL by Erich Fromm.

Book Reviews: The Third World, the Enforcement of Morals, the Policeman in the Community, Elements of Comparative Sociology, Social Policy, Closed Systems and Open Minds: The Limits of naïvety in Social Anthropology, Road Belong Cargo, Jamaican Leaders: Political Attitudes in a New Nation, Leaders, Groups and Influence, the Exercise of Influence in Small Groups, Interpersonal Dynamics, Religion, Culture and Society,

Book Reviews: The Third World, the Enforcement of Morals, the Policeman in the Community, Elements of Comparative Sociology, Social Policy, Closed Systems and Open Minds: The Limits of naïvety in Social Anthropology, Road Belong Cargo, Jamaican Leaders: Political Attitudes in a New Nation, Leaders, Groups and Influence, the Exercise of Influence in Small Groups, Interpersonal Dynamics, Religion, Culture and Society,

Book Review: The Enforcement of Morals

Book Review: The Enforcement of Morals

Review of Book: The Enforcement of Morals

Review of Book: The Enforcement of Morals

The Enforcement of Morals

The Enforcement of Morals

The Enforcement of Morals

There may be a point in reviewing the controversy occasioned by Lord Justice Devlin's Maccabaean lecture from an American point of vantage. For the Justice's brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”