APPENDIX II MACCABAEAN LECTURE IN JURISPRUDENCE

The Decades: Periods Covered by each Book

THE ENFORCEMENT OF MORALS
1. i. A.D. 412-23 III. i [xxi]. to February 1424
ii. to 476 ii [xxii]. to January 1426 By THE HON. SIR PATRICK DEVLIN
iii. to 536 iii [xxiii]. to September 1429
iv. to 538 iv [xxiv]. to autumn 1431 Read 18 March 1959
v. to 541 v [xxv]. to May 1434
vi [xxvi]. to August 1435 HE Report of the Committee on Homosexual Offences and
vi. to 546
vii. to 575
viii. to 602
vii [xxvii]. to December 1437
viii [xxviii]. to March 1438
T Prostitution, generally known as the Wolfenden Report, is
recognized to be an excellent study of two very difficult legal
ix. to 685 ix [xxix]. to April 1439 and social problems. But it has also a particular claim to the
x. to January 754 x [xxx]. to November 1439
respect of those interested in jurisprudence; it does what law
II. i [xi]. to 806 IV. i [xxxi]. to autumn 1440 reformers so rarely do; it sets out clearly and carefully what in
ii [xii]. to 961 ii [xxxii]. to October 1441. relation to its subjects it considers the function of the law to be. 1
iii [xiii]. to October 1097 Statutory additions to the criminal law are too often made on
iv [xiv]. to II23 the simple principle that 'there ought to be a law against it'.
v [xv]. to IIn The greater part of the law relating to sexual offences is the
vi [xvi]. to 1215 creation of statute and it is difficult to ascertain any logical
vii [xvii]. to 1240
relationship between it and the moral ideas which most of us
viii [xviii]. to 1291
uphold. Adultery, fornication, and prostitution are not, as the
ix [xix]. to 1332
X [xx]. to 1410
Reporp points out, criminal offences: homosexuality between
males is a criminal offence, but between females it is not. Incest
was not an offence until it was declared so by statute only fifty
years ago. Does the legislature select these offences haphazardly
or are there some principles which can be used to determine what
part of the moral law should be embodied in the criminal?
There is, for example, being now considered a proposal to make
A.I.D., that is, the practice of artificial insemination of a woman
with the seed of a man who is not her husband, a criminal
offence; if, as is usually the case, the woman is married, this is in
substance, if not in form, adultery. Ought it to be made punish-
able when adultery is not? This sort of question is of practical
importance, for a law that appears to be arbitrary and illogical,
in the end and after the wave of moral indignation that has put
it on the statute book subsides, forfeits respect. As a practical
I The Committee's 'statement ofjuristic philosophy' (to quote Lord Paken-

ham) was considered by him in a debate in the House of Lords on 4 December

1957, reported in Hansard Lords Debates, vol. ccvi at 738; and also in the same
debate by the Archbishop of Canterbury at 753 and Lord Denning at 806.
The subject has also been considered by Mr. J. E. Hall Williams in the Law
Quarterly Review, January 1958, vol. lxxiv, p. 76. 2 Para. 14.

B 7886 K
 THE ENFORCEMENT OF MORALS 131
130 PROCEEDINGS OF THE BRITISH ACADEMY
question it arises more frequently in the field of sexual morals Similar statements of principle are set out in the chapters
than in any other, but there is no special answer to be found in of the Report which deal with prostitution. No case can be
that field. The inquiry must be general and fundamental. What sustained, the Report says,! for attempting to make prostitution
is the connexion between crime and sin and to what extent, if at itself illegal. The Committee refer to the general reasons already
all, should the criminal law of England concern itself with the given and add: 'We are agreed that private immorality should
enforcement of morals and punish sin or immorality as such? not be the concern of the criminal law except in the special
The statements of principle in the Wolfenden Report provide circumstances therein mentioned.' They quote 2 with approval
an admirable and modern starting-point for such an inquiry. the report of the Street Offences Committee,3 which says: 'As a
In the course of my examination of them I shall find matter for general proposition it will be universally accepted that the law
criticism. If my criticisms are sound, it must not be imagined is not concerned with private morals or with ethical sanctions.'
that they point to any shortcomings in the Report. Its authors I t will be observed that the emphasis is on private immorality. By
were not, as I am trying to do, composing a paper on the juris- this is meant immorality which is not offensive or injurious to the
prudence of morality; they were evolving a working formula to public in the ways defined or described in the first passage which
use for reaching a number of practical conclusions. I do not I quoted. In other words, no act of immorality should be made
intend to express any opinion one way or the other about these; a criminal offence unless it is accompanied by some other feature
that would be outside the scope of a lecture on jurisprudence. such as indecency, corruption, or exploitation. This is clearly
I am concerned only with general principles; the statement of brought out4 in relation to prostitution: 'It is not the duty of the
these in the Report illuminates the entry into the subject and I law to concern itself with immorality as such ... it should con-
hope that its authors will forgive me if I carry the lamp with me fine itself to those activities which offend against public order
into places where it was not intended to go. and decency or expose the ordinary citizen to what is offensive
Early in the Report 1 the Committee puts forward: or injurious.'
These statements of principle are naturally restricted to the
Our own formulation of the function of the criminal law so far as it subject-matter of the Report. But they are made in general terms
concerns the subjects of this enquiry. In this field, its function, as we and there seems to be no reason why, if they are valid, they
see it, is to preserve public order and decency, to protect the citizen
should not be applied to the criminal law in general. They
from what is offensive or injurious, and to provide sufficient safeguards
against exploitation and corruption of others, particularly those who are separate very decisively crime from sin, the divine law from the
specially vulnerable because they are young, weak in body or mind, secular, and the moral from the criminal. They do not signify
inexperienced, or in a state of special physical, official or economic any lack of support for the law, moral or criminal, and they do
dependence. not represent an attitude that can be called either religious or
It is not, in our view, the function of the law to intervene in the private irreligi~us. There are many schools of thought among those who
lives ofcitizens, or to seek to enforce any particular pattern of behaviour, may thmk that morals are not the law's business. There is first
further than is necessary to carry out the purposes we have outlined. of all the agnostic or free-thinker. He does not of course disbelieve
The Committee prefaces its most important recommendation 2 in ~orals, r:o: in sin if it be given the wider of the two meanings
aSSIgned to It m the Oxford English Dictionary where it is defined as
that homosexual behaviour between consenting adults in private should 'transgression against divine law or the principles of morality'.
no longer be a criminal offence, [by stating 3 the argument] which we
He cannot accept the divine law; that does not mean that he
believe to be decisive, namely, the importance which society and the law
ought to give to individual freedom of choice and action in matters of rr:ight not view wi~h suspicion any departure from moral prin-
private morality. Unless a deliberate attempt is to be made by society, cIP~es that .have for ?enerations been accepted by the society in
acting through the agency of the law, to equate the sphere of crime with ;-vhIch he lIves; but m the end he judges for himself. Then there
that of sin, there must remain a realm of private morality and im- IS the deeply religious person who feels that the criminal law is
morality which is, in brief and crude terms, not the law's business. To somet~mes more of a hindrance than a help in the sphere of
say this is not to condone or encourage private immorality. moralIty, and that the reform of the sinner-at any rate when
I Para. 13. z Para. 62. 3 Para. 61. I Para. 224. z Para. 227. 3 Crod. 3231 (1928). 4 Para. 257.
132 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 133
he injures only himself-should be a spiritual rather than a should use the secular law wherever it thinks it necessary to
temporal work. Then there is the man who without any strong enforce the divine. If it does not, it is illogical that it should con-
feeling cannot see why, where there is freedom in religious belief, cern itself with morals as such. But ifit leaves matters ofreligion
there should not logically be freedom in morality as well. All to private judgement, it should logically leave matters of morals
these are powerfully allied against the equating of crime with sin. also. A State which refuses to enforce Christian beliefs has lost
I must disclose at the outset that I have as a judge an interest the right to enforce Christian morals.
in the result of the inquiry which I am seeking to make as a If this view is sound, it means that the criminal law cannot
jurisprudent. As a judge who administers the criminal law and justify any of its provisions by reference to the moral law. It
who has often to pass sentence in a criminal court, I should feel cannot say, for example, that murder and theft are prohibited
handicapped in my task if I thought that I was addressing an because they are immoral or sinful. The State must justify in
audience which had no sense of sin or which thought of crime some other way the punishments which it imposes on wrong-
as something quite different. Ought one, for example, in passing doers and a function for the criminal law independent of morals
sentence upon a female abortionist to treat her simply as if she must be found. This is not difficult to do. The smooth function-
were an unlicensed midwife? If not, why not? But if so, is all the ing of society and the preservation of order require that a num-
panoply of the law erected over a set ofsocial regulations? I must ber of activities should be regulated. The rules that are made for
admit that I begin with a feeling that a complete separation of that purpose and are enforced by the criminal law are often
crime from sin (I use the term throughout this lecture in the designed simply to achieve uniformity and convenience and
wider meaning) would not be good for the moral law and might rarely involve any choice between good and evil. Rules that
be disastrous for the criminal. But can this sort of feeling be impose a speed limit or prevent obstruction on the highway have
justified as a matter ofjurisprudence? And ifit be a right feeling, nothing to do with morals. Since so much of the criminal law is
how should the relationship between the criminal and the moral composed of rules of this sort, why bring morals into it at all?
law be stated? Is there a good theoretical basis for it, or is it just Why not define the function of the criminal law in simple terms
a practical working alliance, or is it a bit of both? That is the as the preservation of order and decency and the protection of
problem which I want to examine, and I shall begin by consider- the lives and property of citizens and elaborate those terms in
ing the standpoint of the strict logician. It can be supported by relation to any particular subject in the way in which it is done
cogent arguments, some of which I believe to be unanswerable in the Wolfenden Report? The criminal law in carrying out
and which I put as follows. these objects will undoubtedly overlap the moral law. Crimes of
Morals and religion are inextricably joined-the moral stan- violence are morally wrong and they are also offences against
dards generally accepted in Western civilization being those good order; therefore they offend against both laws. But this is
belonging to Christianity. Outside Christendom other standards simply because the two laws in pursuit of different objectives
derive from other religions. None of these moral codes can claim happen to cover the same area. Such is the argument.
any validity except by virtue of the religion on which it is based. Is the argument consistent or inconsistent with the funda-
Old Testament morals differ in some respects from New Testa- mental principles of English criminal law as it exists today? That
ment morals. Even within Christianity there are differences. is the first way of testing it, though by no means a conclusive one.
Some hold that contraception is an immoral practice and that a In the field of jurisprudence one is at liberty to overturn even
man who has carnal knowledge of another woman while his wife fundamental conceptions if they are theoretically unsound. But
is alive is in all circumstances a fornicator; others, including to see how the argument fares under the existing law is a good
most ofthe English-speaking world, deny both these propositions. starting-point.
Between the great religions of the world, of which Christianity It is true that for many centuries the criminal law was much
is only one, there are much wider differences. It mayor may not concerned with keeping the peace and little, if at all, with sexual
be right for the State to adopt one of these religions as the truth, morals. But it would be wrong to infer from that that it had no
to found itself upon its doctrines and to deny to any of its citizer:s moral content or that it would ever have tolerated the idea of
the liberty to practise any other. If it does, it is logical that It a man being left to judge for himself in matters'of morals. The
134 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 135
criminal law of England has from the very first concerned suicide and suicide pacts, duelling, abortion, incest between
itself with moral principles. A simple way of testing this point brother and sister, are all acts which can be done in private and
is to consider the attitude which the criminal law adopts to- without offence to others and need not involve the corruption or
wards consent. exploitation of others. Many people think that the law on some
Subject to certain exceptions inherent in the nature of par- of these subjects is in need of reform, but no one hitherto has
ticular crimes, the criminal law has never permitted consent of gone so far as to suggest that they should all be left outside the
the victim to be used as a defence. In rape, for example, consent criminal law as matters of private morality. They can be brought
negatives an essential element. But consent of the victim is no within it only as a matter of moral principle. It must be remem-
defence to a charge of murder. It is not a defence to any form of bered also that although there is much immorality that is not
assault that the victim thought his punishment well deserved and punished by the law, there is none that is condoned by the law.
submitted to it; to make a good defence the accused must prove The law will not allow its processes to be used by those engaged
that the law gave him the right to chastise and that he exercised in immorality of any sort. For example, a house may not be let
it reasonably. Likewise, the victim may not forgive the aggressor for immoral purposes; the lease is invalid and would not be
and require the prosecution to desist; the right to enter a nolle enforced. But if what goes on inside there is a matter of private
prosequi belongs to the Attorney-General alone. morality and not the law's business, why does the law inquire
Now, if the law existed for the protection of the individual, into it at all?
there would be no reason why he should avail himself of it if he I think it is clear that the criminal law as we know it is based
did not want it. The reason why a man may not consent to the upon moral principle. In a number ofcrimes its function is simply
commission of an offence against himself beforehand or forgive to enforce a moral principle and nothing else. The law, both
it afterwards is because it is an offence against society. It is not criminal and civil, claims to be able to speak about morality
that society is physically injured; that would be impossible. Nor and immorality generally. Where does it get its authority to do
need any individual be shocked, corrupted, or exploited; every- this and how does it settle the moral principles which it enforces?
thing may be done in private. Nor can it be explained on the Undoubtedly, as a matter of history, it derived both from
practical ground that a violent man is a potential danger to Christian teaching. But I think that the strict logician is right
others in the community who have therefore a direct interest in when he says that the law can no longer rely on doctrines in
his apprehension and punishment as being necessary to their own which citizens are entitled to disbelieve. It is necessary therefore
protection. That would be true of a man whom the victim is to look for some other source.
prepared to forgive but not of one who gets his consent first; a In jurisprudence, as I have said, everything is thrown open to
murderer who acts only upon the consent, and maybe the request, discussion and, in the belief that they cover the whole field, I
of his victim is no menace to others, but he does threaten one of have framed three interrogatories addressed to myself to answer:
the great moral principles upon which society is based, that is, I. Has society the right to pass judgement at all on matters
the sanctity of human life. There is only one explanation of of morals? Ought there, in other words, to be a public
what has hitherto been accepted as the basis of the criminal law morality, or are morals always a matter for private judge-
and that is that there are certain standards of behaviour or moral ment?
principles which society requires to be observed; and the breach 2. If society has the right to pass judgement, has it also the
ofthem is an offence not merely against the person who is injured right to use the weapon of the law to enforce it?
but against society as a whole. 3. If so, ought it to use that weapon in all cases or only in
Thus, if the criminal law were to be reformed so as to elimi- some; and if only in some, on what principles should it
nate from it everything that was not designed to preserve order distinguish?
and decency or to protect citizens (including the protection of
youth from corruption), it would overturn a fundamental prin- I shall begin with the first interrogatory and consider what is
ciple. It would also end a number of specific crimes. Euthanasia meant by the right of society to pass a moral judgement, that is,
or the killing of another at his own request, suicide, attempted a judgement about what is good and what is evil. The fact that
13 6 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 137
a majority of people may disapprove of a practice does not of structure as well as a political one: or rather, since that might
itself make it a matter for society as a whole. Nine men out of suggest two independent systems, I should say that the structure
ten may disapprove of what the tenth man is doing and still say of every society is made up both of politics and morals. Take,
that it is not their business. There is a case for a collective judge- for example, the institution of marriage. Whether a man should
ment (as distinct from a large number of individual opinions be allowed to take more than one wife is something about which
which sensible people may even refrain from pronouncing at all every society has to make ~p its mind one way or the other. In
if it is upon somebody else's private affairs) only if society is England we believe in the Christian idea of marriage and there-
affected. Without a collective judgement there can be no case at fore adopt monogamy as a moral principle. Consequently the
all for intervention. Let me take as an illustration the English- Christian institution of marriage has become the basis of family
man's attitude to religion as it is now and as it has been in the life and so part of the structure of our society. It is there not
past. His attitude now is that a man's religion is his private because it is Christian. It has got there because it is Christian,
affair; he may think of another man's religion that it is right or but it remains there because it is built into the house in which we
wrong, true or untrue, but not that it is good or bad. In earlier live and could not be removed without bringing it down. The
times that was not so; a man was denied the right to practise great majority of those who live in this country accept it because
what was thought of as heresy, and heresy was thought of as it is the Christian idea of marriage and for them the only true
destructive of society. one. But a non-Christian is bound by it, not because it is part of
The language used in the passages I have quoted from the Christianity but because, rightly or wrongly, it has been adopted
Wolfenden Report suggests the view that there ought not to be by the society in which he lives. It would be useless for him to
a collective judgement about immorality per se. Is this what is stage a debate designed to prove that polygamy was theologically
meant by 'private morality' and 'individual freedom of choice more correct and socially preferable; if he wants to live in the
and action'? Some people sincerely believe that homosexuality house, he must accept it as built in the way in which it is.
is neither immoral nor unnatural. Is the 'freedom of choice and We see this more clearly if we think of ideas or institutions
action' that is offered to the individual freedom to decide for that are purely political. Society cannot tolerate rebellion; it
himself what is moral or immoral, society remaining neutral; will not allow argument about the rightness of the cause.
or is it freedom to be immoral if he wants to be? The language Historians a century later may say that the rebels were right and
of the Report may be open to question, but the conclusions at the Government was wrong and a percipient and conscientious
which the Committee arrives answer this question unambigu- subject of the State may think so at the time. But it is not a
ously. If society is not prepared to say that homosexuality is matter which can be left to individual judgement.
morally wrong, there would be no basis for a law protecting The institution of marriage is a good example for my purpose
youth from 'corruption' or punishing a man for living on the because it bridges the division, if there is one, between politics
'immoral' earnings of a homosexual prostitute, as the Report and morals. Marriage is part of the structure of our society and
recommends. I This attitude the Committee makes even clearer it is also the basis of a moral code which condemns fornication
when it comes to deal with prostitution. In truth, the Report and adultery. The institution of marriage would be gravely
takes it for granted that there is in existence a public morality threatened if individual judgements were permitted about the
which condemns homosexuality and prostitution. What the morality of adultery; on these points there must be a public
Report seems to mean by private morality might perhaps be morality. But public morality is not to be confined to those moral
better described as private behaviour in matters of morals. principles which support institutions such as marriage. People
This view-that there is such a thing as public morality- do not think of monogamy as something which has to be sup-
can also be justified by a priori argument. What makes a society ported because our society has chosen to organize itself upon it;
of any sort is community ofideas, not only political ideas but als.o they think of it as something that is good in itself and offering a
ideas about the way its members should behave and govern theIr good way oflife and that it is for that reason that our society has
lives; these latter ideas are its morals. Every society has a moral adopted it. I return to the statement that I have already made,
I Para. 76. that society means a community of ideas; without shared ideas
138 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 139
on politics, morals, and ethics no society can exist. Each one of if society has the right to make a judgement and has it on the
us has ideas about what is good and what is evil; they cannot be basis that a recognized morality is as necessary to society as, say,
kept private from the society in which we live. If men and women a recognized government, then society may use the law to pre-
try to create a society in which there is no fundamental agree- serve morality in the same way as it uses it to safeguard anything
ment about good and evil they will fail; if having based it on else that is essential to its existence. If therefore the first pro-
common agreement, the agreement goes, the society will dis- position is securely established with all its implications, prima
integrate. For society is not something that is kept together facie society has the right to legislate against immorality as such.
physically; it is held by the invisible bonds of common thought. The Wolfenden Report, notwithstanding that it seems to admit
If the bonds were too far relaxed the members would drift the right of society to condemn homosexuality and prostitution
apart. A common morality is part of the bondage. The bondage as immoral, requires special circumstances to be shown to justify
is part of the price of society; and mankind, which needs society, the intervention of the law. I think that this is wrong in principle
must pay its price. and that any attempt to approach my second interrogatory on
Common lawyers used to say that Christianity was part of the these lines is bound to break down. I think that the attempt by
law of the land. That was never more than a piece of rhetoric the Committee does break down and that this is shown by the
as Lord Sumner said in Bowman v. The Secular Society. 1 What lay fact that it has to define or describe its special circumstances so
behind it was the notion which I have been seeking to expound, widely that they can be supported only if it is accepted that the
namely that morals-and up till a century or so ago no one law is concerned with immorality as such.
thought it worth distinguishing between religion and morals- The widest of the special circumstances are described as
were necessary to the temporal order. In 1675 Chief]ustice Hale the provision of 'sufficient safeguards against exploitation and
said: 2 'To say that religion is a cheat is to dissolve all those corruption of others, particularly those who are specially
obligations whereby civil society is preserved.' In 1797 Mr.]ustice vulnerable because they are young, weak in body or mind, in-
Ashurst said 3 of blasphemy that it was 'not only an offence against experienced, or in a state of special physical, official or economic
God but against all law and government from its tendency to dependence'. I The corruption of youth is a well-recognized
dissolve all the bonds and obligations of civil society'. By 19 08 ground for intervention by the State and for the purpose of any
Mr.]ustice Phillimore was able to say:4 'A man is free to think, legislation the young can easily be defined. But if similar pro-
to speak and to teach what he pleases as to religious matters, tection were to be extended to every other citizen, there would
but not as to morals.' be no limit to the reach of the law. The 'corruption and ex-
You may think that I have taken far too long in contending ploitation of others' is so wide that it could be used to cover any
that there is such a thing as public morality, a proposition which sort of immorality which involves, as most do, the co-operation
most people would readily accept, and may have left myself of another person. Even if the phrase is taken as limited to the
too little time to discuss the next question which to many minds categories who are particularized as 'specially vulnerable', it is
may cause greater difficulty: to what extent should society use so elastic as to be practically no restriction. This is not merely
the law to enforce its moral judgements? But I believe that the a matter of words. For if the words used are stretched almost
answer to the first question determines the way in which the beyond breaking-point, they still are not wide enough to cover
second should be approached and may indeed very nearly dic- the recommendations which the Committee makes about prosti-
tate the answer to the second question. If society has no right to tution.
make judgements on morals, the law must find some special Prostitution is not in itself illegal and the Committee does not
justification for entering the field of morality: if homosexuality think that it ought to be made SO.2 If prostitution is private
and prostitution are not in themselves wrong, then the om-:s IS immorality and not the law's business, what concern has the law
very clearly on the lawgiver who wants to frame a law agamst with the ponce or the brothel-keeper or the householder who
certain aspects of them to justify the exceptional treatment. But permits habitual prostitution? The Report recommends that
I (19 17), A.C. 406 , at 457. 2 Taylor's Case, I Vent. 293· the laws which make these activities criminal offences should be
3 R. v. Williams, 26 St. Tr. 653, at 715. .. R. v. Boulter, 72 J.P. 188. I Para. 13. 2 Paras. 224, 285, and 318.
140 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 141

maintained or strengthened and brings them (so far as it goes is often the first stage of disintegration, so that society is justified
into principle; with regard to brothels it says simply that the law in taking the same steps to preserve its moral code as it does to
rightly frowns on them) under the head of exploitation. I There preserve its government and other essential institutions. The
may be cases of exploitation in this trade, as there are or used suppression of vice is as much the law's business as the suppres-
to be in many others, but in general a ponce exploits a prostitute sion of subversive activities; it is no more possible to define
no more than an impresario exploits an actress. The Report a sphere of private morality than it is to define one of private
finds 2 that 'the great majority of prostitutes are women whose subversive activity. It is wrong to talk of private morality or of
psychological makeup is such that they chose this life because the law not being concerned with immorality as such or to try
they find in it a style of living which is to them easier, freer and to set rigid bounds to the part which the law may play in the
more profitable than would be provided by any other occupa- suppression of vice. There are no theoretical limits to the power
tion.... In the main the association between prostitute and ponce of the State to legislate against treason and sedition, and like-
is voluntary and operates to mutual advantage.' The Committee wise I think there can be no theoretical limits to legislation
would agree that this could not be called exploitation in the against immorality. You may argue that if a man's sins affect
ordinary sense. They say:3 'It is in our view an over-simplifica- only himself it cannot be the concern of society. If he chooses to
tion to think that those who live on the earnings of prostitution get drunk every night in the privacy of his own home, is anyone
are exploiting the prostitute as such. What they are really exploit- except himself the worse for it? But suppose a quarter or a half
ing is the whole complex of the relationship between prostitute of the population got drunk every night, what sort of society
and customer; they are, in effect, exploiting the human weak- would it be ? You cannot set a theoretical limit to the number
nesses which cause the customer to seek the prostitute and the of people who can get drunk before society is entitled to legislate
prostitute to meet the demand.' against drunkenness. The same may be said of gambling. The
All sexual immorality involves the exploitation of human Royal Commission on Betting, Lotteries, and Gaming took as
weaknesses. The prostitute exploits the lust of her customers and their test the character of the citizen as a member of society.
the customer the moral weakness of the prostitute. If the ex- They said: 1 'Our concern with the ethical significance of
ploitation of human weaknesses is considered to create a special gambling is confined to the effect which it may have on the
circumstance, there is virtually no field of morality which can be character of the gambler as a member of society. If we were
defined in such a way as to exclude the law. convinced that whatever the degree of gambling this effect must
I think, therefore, that it is not possible to set theoretical limits be harmful we should be inclined to think that it was the duty of
to the power of the State to legislate against immorality. It is not the state to restrict gambling to the greatest extent practicable.'
possible to settle in advance exceptions to the general rule or to In what circumstances the State should exercise its power is
define inflexibly areas of morality into which the law is in no the third of the interrogatories I have framed. But before I get
circumstances to be allowed to enter. Society is entitled by means to it I must raise a point which might have been brought up in
of its laws to protect itself from dangers, whether from within or anyone of the three. How are the moral judgements of society
without. Here again I think that the political parallel is legiti- to be ascertained? By leaving it until now, I can ask it in the more
mate. The law of treason is directed against aiding the king's limited form that is now sufficient for my purpose. How is the
enemies and against sedition from within. The justification for law-maker to ascertain the moral judgements of society? It is
this is that established government is necessary for the existence surely not enough that they should be reached by the opinion
of society and therefore its safety against violent overthrow must of the majority; it would be too much to require the individual
be secured. But an established morality is as necessary as good assent of every citizen. English law has evolved and regularly
government to the welfare of society. Societies disintegrate from uses a standard which does not depend on the counting of the
within more frequently than they are broken up by external heads. It is that of the reasonable man. He is not to be confused
pressures. There is disintegration when no common morality with the rational man. He is not expected to reason about any-
is observed and history shows that the loosening of moral bonds thing and his judgement may be largely a matter of feeling. It is
I Paras. 302 and 320. z Para. 223. 3 Para. 306. I (195 1) Cmd. 8190, para. 159.
142 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 143
the viewpoint of the man in the street-or to use an archaism I do not think that one can talk sensibly ofa public and private
familiar to all lawyers-the man in the Clapham omnibus. He morality any more than one can of a public or private highway.
might also be called the right-minded man. For my purpose I Morality is a sphere in which there is a public interest and a
should like to call him the man in the jury box, for the moral private interest, often in conflict, and the problem is to reconcile
judgement of society must be something about which any twelve the two. This does not mean that it is impossible to put forward
men or women drawn at random might after discussion be any general statements about how in our society the balance
expected to be unanimous. This was the standard the judges ought to be struck. Such statements cannot of their nature be
applied in the days before Parliament was as active as it is now rigid or precise; they would not be designed to circumscribe the
and when they laid down rules of public policy. They did not operation of the law-making power but to guide those who have
think of themselves as making law but simply as stating principles to apply it. While every decision which a court of law makes
which every right-minded person would accept as valid. It is when it balances the public against the private interest is an
what Pollock called 'practical morality', which is based not on ad hoc decision, the cases contain statements of principle to which
theological or philosophical foundations but 'in the mass of con- the court should have regard when it reaches its decision. In the
tinuous experience half-consciously or unconsciously accumu- same way it is possible to make general statements of principle
lated and embodied in the morality of common sense'. He called which it may be thought the legislature should bear in mind
it also 'a certain way of thinking on questions of morality which when it is considering the enactment of laws enforcing morals.
we expect to find in a reasonable civilized man or a reasonable I believe that most people would agree upon the chief of these
Englishman, taken at random'. 1 elastic principles. There must be toleration of the maximum
Immorality then, for the purpose of the law, is what every individual freedom that is consistent with the integrity of society.
right-minded person is presumed to consider to be immoral. It cannot be said that this is a principle that runs all through the
Any immorality is capable of affecting society injuriously and in criminal law. Much of the criminal law that is regulatory in
effect to a greater or lesser extent it usually does; this is what character-the part of it that deals with malum prohibitum rather
gives the law its locus standi. It cannot be shut out. But-and this than malum in se-is based upon the opposite principle, that is,
brings me to the third question-the individual has a locus standi that the choice of the individual must give way to the conveni-
too; he cannot be expected to surrender to the judgement of ence of the many. But in all matters of conscience the principle
society the whole conduct of his life. It is the old and familiar I have stated is generally held to prevail. It is not confined
question of striking a balance between the rights and interests of to thought and speech; it extends to action, as is shown by the
society and those of the individual. This is something which the recognition of the right to conscientious objection in war-time;
law is constantly doing in matters large and small. To take this example shows also that conscience will be respected even in
a very down-to-earth example, let me consider the right of the times of national danger. The principle appears to me to be
individual whose house adjoins the highway to have access to it; peculiarly appropriate to all questions of morals. Nothing should
that means in these days the right to have vehicles stationary in be punished by the law that does not lie beyond the limits of
the highway, sometimes for a considerable time if there is a lot tolerance. It is not nearly enough to say that a majority dislike a
of loading or unloading. There are many cases in which the practice; there must be a real feeling of reprobation. Those who
courts have had to balance the private right of access against are dissatisfied with the present law on homosexuality often say
the public right to use the highway without obstruction. It can- that the opponents of reform are swayed simply by disgust. If
not be done by carving up the highway into public and private that were so it would be wrong, but I do not think one can ignore
areas. It is done by recognizing that each have rights over the disgust ifit is deeply felt and not manufactured. Its presence is a
whole; that if each were to exercise their rights to the full, they good indication that the bounds of toleration are being reached.
would come into conflict; and therefore that the rights of each Not everything is to be tolerated. No society can do without
must be curtailed so as to ensure as far as possible that the intolerance, indignation, and disgust; they are the forces behind
essential needs of each are safeguarded. the moral law, and indeed it can be argued that if they or some-
I Essays in Jurisprudence and Ethics (1882), Macmillan, pp. 278 and 353. thing like them are not present the feelings of society cannot be
144 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 145
weighty enough to deprive the individual of freedom of choice. mind, always seeking greater freedom of thought, is outwards
I suppose that there is hardly anyone nowadays who would not against the bonds of society forcing their gradual relaxation. It
be disgusted by the thought of deliberate cruelty to animals. No may be that history is a tale of contraction and expansion and
one proposes to relegate that or any other form of sadism to the that all developed societies are on their way to dissolution. I
realm of private morality or to allow it to be practised in public must not speak of things I do not know; and anyway as a prac-
or in private. It would be possible no doubt to point out that tical matter no society is willing to make provision for its own
until a comparatively short while ago nobody thought very much decay. I return therefore to the simple and observable fact that
of cruelty to animals and also that pity and kindliness and the in matters of morals the limits of tolerance shift. Laws, especially
unwillingness to inflict pain are virtues more generally esteemed those which are based on morals, are less easily moved. It follows
now than they have ever been in the past. But matters of this as another good working principle that in any new matter of
sort are not determined by rational argument. Every moral morals the law should be slow to act. By the next generation the
judgement, unless it claims a divine source, is simply a feeling swell of indignation may have abated and the law be left without
that no right-minded man could behave in any other way with- the strong backing which it needs. But it is then difficult to alter
out admitting that he was doing wrong. It is the power of the law without giving the impression that moral judgement is
a common sense and not the power of reason that is behind the being weakened. This is now one of the factors that is strongly
judgements of society. But before a society can put a practice militating against any alteration to the law on homosexuality.
beyond the limits of tolerance there must be a deliberate judge- A third elastic principle must be advanced more tentatively.
ment that the practice is injurious to society. There is, for ex- It is that as far as possible privacy should be respected. This is
ample, a general abhorrence of homosexuality. We should ask not an idea that has ever been made explicit in the criminal law.
ourselves in the first instance whether, looking at it calmly and Acts or words done or said in public or in private are all brought
dispassionately, we regard it as a vice so abominable that its within its scope without distinction in principle. But there goes
mere presence is an offence. If that is the genuine feeling of the with this a strong reluctance on the part ofjudges and legislators
society in which we live, I do not see how society can be denied to sanction invasions of privacy in the detection of crime. The
the right to eradicate it. Our feeling may not be so intense as police have no more right to trespass than the ordinary citizen
that. We may feel about it that, if confined, it is tolerable, but has; there is no general right ofsearch; to this extent an English-
that if it spread it might be gravely injurious; it is in this way man's home is still his castle. The Government is extremely
that most societies look upon fornication, seeing it as a natural careful in the exercise even of those powers which it claims to be
weakness which must be kept within bounds but which cannot undisputed. Telephone tapping and interference with the mails
be rooted out. It becomes then a question of balance, the danger afford a good illustration of this. A Committee of three Privy
to society in one scale and the extent of the restriction in the Councillors who recently inquired 1 into these activities found
other. On this sort of point the value of an investigation by such that the Home Secretary and his predecessors had already formu-
a body as the Wolfenden Committee and of its conclusions is lated strict rules governing the exercise of these powers and the
manifest. Committee was able to recommend that they should be con-
The limits of tolerance shift. This is supplementary to what I tinued to be exercised substantially on the same terms. But they
have been saying but of sufficient importance in itself to deserve reported that the power was 'regarded with general disfavour'.
statement as a separate principle which law-makers have to bear This indicates a general sentiment that the right to privacy
in mind. I suppose that moral standards do not shift; so far as is something to be put in the balance against the enforcement
they come from divine revelation they do not, and I am willing to of the law. Ought the same sort of consideration to play any part
assume that the moral judgements made by a society always in the formation of the law? Clearly only in a very limited num-
remain good for that society. But the extent to which society will ber of cases. When the help of the law is invoked by an injured
tolerate-I mean tolerate, not approve-departures from moral citizen, privacy must be irrelevant; the individual cannot ask
standards varies from generation to generation. It may be that that his right to privacy should be measured against injury
over all tolerance is always increasing. The pressure ofthe human I (1957) Cmd. 283.
B 7886 L
146 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 147

criminally done to another. But when all who are involved in the to behave; it is a statement of what will happen to them if they
deed are consenting parties and the injury is done to morals do not behave; good citizens are not expected to come within
the public interest in the moral order can be .balanced agai~st reach of it or to set their sights by it, and every enactment should
the claims of privacy. The restriction on polIce powers of Ill- be framed accordingly.
vestigation goes further than the affording of a parallel; it means The arm of the law is an instrument to be used by society, and
that the detection of crime committed in private and when there the decision about what particular cases it should be used in is
is no complaint is bound to be rather haphazard and this is an essentially a practical one. Since it is an instrument, it is wise
additional reason for moderation. These considerations do not before deciding to use it to have regard to the tools with which
justify the exclusion of all private immorality from the scope of it can be fitted and to the machinery which operates it. Its tools
the law. I think. that, as I have already suggested, the test of are fines, imprisonment, or lesser forms of supervision (such as
'private behaviour' should be substituted for 'private morality' Borstal and probation) and-not to be ignored-the degrada-
and the influence of the factor should be reduced from that of tion that often follows upon the publication of the crime. Are
a definite limitation to that of a matter to be taken into account. any of these suited to thejob of dealing with sexual immorality?
Since the gravity of the crime is also a proper considerati~n, The fact that there is so much immorality which has never been
a distinction might well be made in the case of homosexualIty brought within the law shows that there can be no general rule.
between the lesser acts of indecency and the full offence, which It is a matter for decision in each case; but in the case of homo-
on the principles of the Wolfenden Report it would be illogical sexuality the Wolfenden Report rightly has regard to the views
to do. of those who are experienced in dealing with this sort of crime
The last and the biggest thing to be remembered is that the and to those of the clergy who are the natural guardians of
law is concerned with the minimum and not with the maximum; public morals.
there is much in the Sermon on the Mount that would be out The machinery which sets the criminal law in motion ends with
of place in the Ten Commandments. We all recognize the gap the verdict and the sentence; and a verdict is given either by
between the moral law and the law of the land. No man is worth magistrates or by a jury. As a general rule, whenever a crime is
much who regulates his conduct with the sole object of escaping sufficiently serious to justify a maximum punishment of more
punishment, and every worthy society sets for its m~mbers sta~­ than three months, the accused has the right to the verdict of
dards which are above those of the law. We recogmze the eXIS- a jury. The result is that magistrates administer mostly what I
tence of such higher standards when we use expressions such as have called the regulatory part of the law. They deal extensively
'moral obligation' and 'morally bound'. The distinction was well with drunkenness, gambling, and prostitution, which are matters
put in the judgement of Mrican elders in a family dispute: I 'We of morals or close to them, but not with any of the graver moral
have power to make you divide the crops, for this is our law, offences. They are more responsive than juries to the ideas of the
and we will see this is done. But we have not power to make ~egislature; it may not be accidental that the Wolfenden Report,
you behave like an upright man.' In recommending increased penalties for solicitation, did not go
It can only be because this point is so obvious that it is so above the limit of three months. Juries tend to dilute the decrees
frequently ignored. Discussion among law-makers, both pro- of Parliament with their own ideas of what should be punishable.
fessional and amateur, is too often limited to what is right or Their province of course is fact and not law, and I do not mean
wrong and good or bad for society. There is a failure to keep ~h~t they often deliberately disregard the law. But if they think
separate the two questions I have earlier posed-the quest.ion of It IS too stringent, they sometimes take a very merciful view of
society's right to pass a moral judgement and the questIOn of the facts. Let me take one example out of many that could be
whether the arm of the law should be used to enforce the judge- given. It is an offence to have carnal knowledge of a girl under
ment. The criminal law is not a statement of how people ought t~e age of sixteen years. Consent on her part is no defence; if she
dId not consent, it would of course amount to rape. The law
I A case in the Saa-Katengo Kuta at Lialiu, August 1942, quoted in

The Judicial Process among the Barotse of Northern Rhodesia by Max Gluckman, make~ special provision for the situation when a boy and girl are
p. 17 2 , Manchester University Press, 1955· near III age. If a man under twenty-four can prove that he had
148 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 149

reasonable cause to believe that the girl was over the age of untouched by the criminal law does not prove that homosexuality
sixteen years, he has a good defence. The law regards the offence ought not to be touched. [The error of jurisprudence in the
as sufficiently serious to make it one that is triable only by a Wolfenden Report is caused by the search for some single prin-
judge at assizes. 'Reasonable cause' means not merely that the ciple to explain the division between crime and sin. The Report
boy honestly believed that the girl was over sixteen but also finds it in the principle that the criminal law exists for the pro-
that he must have had reasonable grounds for his belief. In tection of individuals; on this principle fornication in private
theory it ought not to be an easy defence to m~ke out but i~ fact between consenting adults is outside the law and thus it becomes
it is extremely rare for anyone who advances It to be convIcted. logically indefensible to bring homosexuality between consent-
The fact is that the girl is often as much to blame as the boy. ing adults in private within it. But the true principle is that the
The object of the law, as judges repeatedly tell juries, is to pro- law exists for the protection of society. It does not discharge its
tect young girls against themselves; but juries are not imp:es~ed. function by protecting the individual from injury, annoyance,
The part that the jury plays in the enforcement of the cnmmal corruption, and exploitation; the law must protect also the
law, the fact that no grave offence against morals is punishable in~titutions.and the community of ideas, political and moral,
without their verdict, these are of great importance in relation WIthout whIch people cannot live together. Society cannot ignore
to the statements of principle that I have been making. They the morality of the individual any more than it can his loyalty;
turn what might otherwise be pure exhortation to the legislature it flourishes on both and without either it diesJ
into something like rules that the law-makers cannot safely I have said that the morals which underly the law must be
ignore. The man in the jury box is not just an expression; he is derived from the sense of right and wrong which resides in the
an active reality. It will not in the long run work to make laws community as a whole; it does not matter whence the com-
about morality that are not acceptable to him. munity of thought comes, whether from one body of doctrine or
This then is how I believe my third interrogatory should be another or from the knowledge of good and evil which no man is
answered-not by the formulation of hard and fast rules, but without. If the reasonable man believes that a practice is im-
by a judgement in each case taking into account the sort of moral and believes also-no matter whether the beliefis right or
factors I have been mentioning. 'The line that divides the w::ong, so be it that it ~s hon.est and dispassionate-that no right-
criminal law from the moral is not determinable by the applica- mmded member of hIS SOCIety could think otherwise, then for
tion of any clear-cut principle! It is like a line that divides land ~he purp?se of the ~aw it is immoral. This, you may say, makes
and sea, a coastline of irregularities and indentations. There are ImmoralIty a questIOn of fact-what the law would consider as
gaps and promontories, such as adultery and fornication, which self-evident fact no doubt, but still with no higher authority than
the law has for centuries left substantially untouched. Adultery any other doctrine of public policy. I think that that is so and
of the sort that breaks up marriage seems to me to be just as indeed the law does not distinguish between an act that is
harmful to the social fabric as homosexuality or bigamy. The immoral and one that is contrary to public policy. But the law
only ground for putting it outside the criminal law is that a law has never yet had occasion to inquire into the differences between
which made it a crime would be too difficult to enforce; it is too Christian morals and those which every right-minded member
generally regarded as a human weakness no~ suitab~y p~ni~hed of society is expected to hold. The inquiry would, I believe be
by imprisonment. All that the law can do WIth formcatIOn IS to academic. Moralists would find differences; indeed they w~uld
act against its worst manifestations; there is a general abhor- find them between different branches of the Christian faith on
rence of the commercialization of vice, and that sentiment gives subject~ s~ch as divorc.e and birth-control. But for the purpose
strength to the law against brothels and immoral earnings. There of the lImIted entry whIch the law makes into the field of morals
is no logic to be found in this. The boundary between the there is no practical difference. It seems to me therefore that th~
criminal law and the moral law is fixed by balancing in the case free-~hinker. a~d the non-Christi~n can accept, without offence
of each particular crime the pros and cons of legal enforcement to hIS conVIctIOns, the fact that [Christian morals are the basis
in accordance with the sort of considerations I have been out- of ~he criminal laW) and that he can recognize, also without
lining. The fact that adultery, fornication, and lesbianism are takmg offence, that without. the support of the churches the
 150 PROCEEDINGS OF THE BRITISH ACADEMY THE ENFORCEMENT OF MORALS 15 1
moral order, which has its origin in and takes its strength from people in cases o~ this kind often result in death that attempts
Christian beliefs, would collapse. to produce abortIOn are regarded by the law as very serious
This brings me back in the end to a question I posed at the offences.' This gives the law a twist which disassociates it from
beginning. What is the relationship between crime and sin, morality and, I think, to some extent from sound sense. The act
between the Church and the Law? I do not think that you can is being punished because it is dangerous, and it is dangerous
equate crime with sin. The divine law and the secular have been largely because it is illegal and therefore performed only by the
disunited, but they are brought together again by the need which unskilled.
each has for the other. It is not my function to emphasize the T~e obje<:t of what I.have said is not to criticize theology or
Church's need of the secular law; it can be put tersely by saying law III relatIOn to abortIOn. That is a large subject and beyond
that you cannot have a ceiling without a floor. I am very clear my present scope. It is to show what happens to the law in
about the law's need for the Church. I have spoken of the matters of morality about which the community as a whole is
criminal law as dealing with the minimum standards of human not deeply imbued with a sense of sin; the law sags under a
conduct and the moral law with the maximum. The instrument weight which it is not constructed to bear and may become per-
of the criminal law is punishment; those of the moral law are manently warped.
teaching, training, and exhortation. If the whole dead weight of I return now to the main thread of my argument and sum-
sin were ever to be allowed to fall upon the law, it could not take marize it. Society cannot live without morals. Its morals are
the strain. If at any point there is a lack of clear and convincing those standards of conduct which the reasonable man approves.
moral teaching, the administration of the law suffers. Let me A rational man, who is also a good man, may have other stan-
take as an illustration of this the law on abortion. I believe that a dards. If he has no standards at all he is not a good man and
great many people nowadays do not understand that abortion is need n?t be further considered. Ifhe has standards, they may be
wrong. If it is right to prevent conception, at what point does very ~Ifferent; he .may, for example, not disapprove of homo-
it become sinful to prevent birth and why? I doubt if anyone sexualIty or abortIOn. In that case he will not share in the
who has not had a theological training would give a satisfactory com~on mor~lity; but that should not make him deny that it is
answer to that question. Many people regard abortion as the next a SOCIal neceSSIty. A rebel may be rational in thinking that he is
step when by accident birth-control has failed; and many more right but he is irrational if he thinks that society can leave him
people are deterred from abortion not because they think it free to rebel.
sinful or illegal but because of the difficulty which illegality puts A man who concedes that morality is necessary to society must
in the way of obtaining it. The law is powerless to deal with support the use of those instruments without which morality
abortion per se; unless a tragedy occurs or a 'professional' abor- cannot be maintained. The two instruments are those of teach-
tionist is involved-the parallel between the 'professional' in ing, which is doctrine, and of enforcement, which is the law. If
abortions and the 'professional' in fornication is quite close-it morals cou~d be taught simply on the basis that they are neces-
has to leave it alone. Without one or other of these features the sary to SOCIety, there would be no social need for religion; it
crime is rarely detected; and when detected, the plea ad miseri- could b.e left as a purely personal affair. But morality cannot be
cordiam is often too strong. The 'professional' abortionist is usually tau.ght III that way. Loyalty is not taught in that way either. No
the unskilled person who for a small reward helps girls in trouble; so.cIety has. ~et solved the problem of how to teach morality
the man and the girl involved are essential witnesses for the WIthout relIgIOn. So the law must base itself on Christian morals
prosecution and therefore go free; the paid abortionist generally and to the limit of its ability enforce them, not simply because
receives a very severe sentence, much more severe than that they are th~ morals of most of us, nor simply because they are the
usually given to the paid assistant in immorality, such as the morals whIch are taught by the established Church-on these
ponce or the brothel-keeper. The reason is because unskilled points the law recognizes the right to dissent-but for the com-
abortion endangers life. In a case in 1949 1 Lord Chief Justice pelling reason that without the help of Christian teaching the
Goddard said: 'It is because the unskilful attentions of ignorant law will fail.
I R. v. Tate, The Times, 22 June 1949.