H418/03, H418/04 - Enforcing moral values

Reasons for coercion

Legal enforcement turns a moral concern into a coercive rule, so its justification must address more than disapproval.

Coercion uses force or the threat of a legal consequence to constrain a person's choice. Criminal punishment can stigmatise and deprive a person of liberty. Civil remedies can compel payment or restrain conduct. Before endorsing either, ask what interest the rule protects, whose freedom it restricts and whether it is an effective and proportionate response.

Different reasons should remain distinct. Harm prevention protects others from injury, exploitation or interference with rights. Paternalism restricts a person's choice for that person's own welfare. Legal moralism justifies a restriction because the conduct is morally wrong, even beyond independently identified harm to others. A rule may have several rationales, but one must not silently substitute for another. Describing offence or disgust as “harm” without explanation risks making every disliked choice punishable.

The Wolfenden Report (1957) recommended ending criminal punishment of private consensual homosexual conduct between adults, while retaining a role for law in protecting people from exploitation and maintaining public order and decency. The report was a recommendation, not legislation. The Sexual Offences Act 1967 partially decriminalised specified private conduct between consenting men in England and Wales, subject to restrictions including an age threshold then set at 21. It did not establish full equality or remove every related offence at once; later legislation changed the position further.

This historical example makes the issue concrete. A society may disapprove of conduct without a sufficient reason to punish consenting adults for it. But “private” alone cannot settle every case: concealed abuse or coerced conduct can harm people in private. The relevant distinction includes genuine consent, affected interests and the reasons for intervention.

Hart and Devlin

Devlin and Hart disagreed about whether preserving shared morality supplies a sufficient basis for criminal intervention.

In The Enforcement of Morals, Patrick Devlin argued that shared morality helps hold society together, so society may defend it through law as it protects itself from other threats. His account looked to the strongly held reactions of an ordinary reasonable person, associated with the jury, rather than requiring proof of injury to a particular victim. Deep intolerance, indignation or disgust could signal that conduct had passed society's limits of tolerance.

Devlin did not say every majority dislike must be criminalised. He also valued the maximum freedom compatible with society's integrity, tolerance and respect for privacy. These qualifications matter: his argument supports a potential power to enforce morality, not an automatic command to prohibit every unconventional act. The difficulty remains how to identify the threatened shared morality fairly in a diverse society.

H. L. A. Hart, especially in Law, Liberty and Morality (1963), challenged the inference that a change in accepted morality necessarily destroys society. A community can continue while its views change. Existing social approval is positive morality; a reasoned assessment of whether those standards are justified is critical morality. Their difference allows a critic to question prejudice rather than treat its popularity as a justification for punishment.

Hart attached strong value to individual freedom and required justification for criminal coercion. He did not claim that no private conduct could ever be regulated or simply reproduce an absolute ban on paternalism. Limited protection of a person's welfare can raise a different argument from enforcing conformity solely because others condemn the choice. The debate is about the grounds and limits of intervention.

For an original proposal banning a peaceful private practice because it offends a majority, Devlin's reasoning focuses on whether shared moral commitments are seriously threatened, subject to tolerance. Hart's reasoning questions the evidence of that threat and the justification of the moral judgment. Neither thinker is a binding legal source deciding whether the proposed ban is currently lawful.

Public morals and certainty

Shaw v DPP shows how enforcing public morals can conflict with certainty about criminal liability.

In Shaw v DPP (1961), Shaw published a directory advertising prostitutes' services. The House of Lords majority upheld his conviction for conspiracy to corrupt public morals. Viscount Simonds supported a residual judicial role in protecting society's moral welfare. Lord Reid dissented, questioning the claimed offence and the courts' role in creating criminal prohibitions where Parliament had not acted. Other convictions arose too; the nature-of-law issue here concerns the public-morals conspiracy.

The majority's reasoning can be linked to Devlin: maintaining a common moral framework may require intervention even when the wrong is not reducible to a single injured victim. A possible benefit is addressing harmful organisation of conduct before a detailed statute exists. A critic must address that protective argument rather than merely call the decision old-fashioned.

The counterargument is substantial. An uncertain offence framed around corruption of morals makes it difficult to know which conduct is prohibited. Judicial creation or expansion of crimes threatens the rule-of-law requirement that punishment rest on ascertainable law. Parliament can investigate a social problem, define the prohibited conduct and specify limits prospectively. Hart's approach also asks whether moral disapproval supplies sufficient justification for coercion.