Taking Law Seriously: Starting Points of the Hart/Devlin Debate*

PETER CANE

TAKING LAW SERIOUSLY:

STARTING POINTS OF THE HART/DEVLIN DEBATE*

(Received 8 July 2004; accepted in revised form 25 October 2004)

ABSTRACT. The famous mid-20th century debate between Patrick Devlin and Herbert Hart about the relationship between law and morality addressed the limits of the criminal law in the context of a proposal by the Wolfenden Committee to decriminalize male homosexual activity in private. The original exchanges and subsequent contributions to the debate have been signicantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual oences in particular; a preoccupation with the so-called harm principle, a sharp delineation of the realms of law and morality, and a static conception of the relationship between them. This article explores the limitations imposed by these various starting-points and argues for a holistic and symbiotic understanding of the relationship between law and morality.

KEY WORDS: Joel Feinberg, H. L. A. Hart, harm principle, HartDevlin debate, law and morality, legal enforcement of morality, legal moralism, limits of the criminal law, Lord Devlin, J. S. Mill, paternalism, sexual oences, Wolfenden Committee

1. THE DEBATE

In 1957 a committee chaired by Lord Wolfenden recommended that consensual sexual activity between men in private should be decriminalized.1 That recommendation rested in part on a view that the function of the criminal law was:

...to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others ... not to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.2

* Thanks to Tony Connolly, Leighton McDonald and Niki Lacey for penetrating and suggestive comments on previous versions.

1 Report of the Committee on Homosexual Oences and Prostitution, Cmd 247, 1957 (UK).

2 Report of the Committee on Homosexual Oences and Prostitution, Cmd 247, 1957 (UK), Paragraph 13.

The Journal of Ethics (2006) 10: 2151 Springer 2006 DOI 10.1007/s10892-005-4590-x

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PETER CANE

Unless a deliberate attempt is made ... to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which...