This Article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. The article attempts to analyse Lord Devlin’s understanding of the function of criminal law, which is to enforce a moral principle.
Table of Contents
Introduction
Lord Devlin differs from his opponents on the divisions concerning whether a line of principle can be drawn between the reasons that the state proposes to justify their coercive restrictions on behaviour. However, it has been observed for a long that it is not the duty of the law to concern itself with immorality. These points are usually discussed under the rubrics of enforcement of morality by the criminal law. But if the law does not attribute itself in the business of enforcing morality then why does it aim to protect citizens against any harm, injury and indecency? With various notions for its justification, we do not know where the line is drawn which will also differ with various schools of thought.
This poses a tangled question with its origin in philosophical and sociological controversy. Can criminalizing be justified based on public condemnation? There are and will be various issues that people would characterize as immoral. But what part should it play in deciding whether to criminalize them or not? This would be inconsistent with the idea of individual liberty promoting the morals of the largest mob to be warranted as truth. Other ways to consider it criminal can be if it has effects on social customs and institutions or if there is a need for some harm to be inflicted.
Lord Devlin’s disenchantment
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 the above-mentioned issues of the said principle. Instances such as homosexuality, prostitution, and the publication of pornography raise contradicting opinions where Devlin’s conclusion on homosexuality could be summarized in the following remarks. “We should ask ourselves in the first instance whether, looking at it calmly and dispassionately, we regard it as a vice so abominable that its mere presence is an offence. If that is the genuine feeling of the society in which we live, I do not see how society can be denied the right to eradicate it.” These remarks raised huge rebuttals and in response to it, Lord Devlin republished the Maccabaean Lecture along with six further essays developing and defending the views expressed in the former version along with adding important new footnotes to it.
His controversial opinions on the first books were based on the Wolfenden Committee recommendation that homosexual practices in private between consenting adults are no longer criminal. The committee’s expression on the division between crime and sin was that in the particular matter, the law’s function is to preserve public order and decency, to extend protection to citizens from harm and injury and thereby safeguard them from exploitation. That law does not intervene in the private lives of the people or aims to coerce people into following any particular pattern beyond what is necessary to carry out its purpose. There must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law’s business.
However, Devlin was found to possess completely opposing views at times. Sometimes he would argue in converse to the committee’s position, namely that the conduct which is strongly disapproved by the society must be punished by the society as a means of exercising its rights, even though the said conduct cannot be said to be injurious to others. This was based on the belief that the state has a role to play as the moral tutor that uses criminal law as its proper tutorial technique. For this, he had two chief arguments structured; firstly the society’s right to protect its own existence, and secondly, the majority’s right to follow its own moral convictions in defending its social environment from change it opposes.
The first argument: Society’s right to protect itself
Modern society consists of various moral principles which some people adopt for their own well being without imposing them on others. There also exist certain moral standards which the majority keeps at a sacrosanct position that are indisputable and are imposed upon those who dissent. For a society to survive, some standards have to be second class in order to focus on the moral conformity which is essential to its life.
Every society has a right to preserve its existence and in doing so, it has the right to insist on some conformity. Thus where society holds such a right to protect itself, to ensure its enforcement, it further has the right to use the institutions and sanctions of the criminal law. These institutions are to be used to preserve morality in a similar way as it does to safeguard other rights.
However, this right must not be exercised to punish immorality at all events and occasions. It should depend on the impact and importance of the restraining principles which are an essential guide for determining whether an exercise is profoundly immoral. Out of the variety of their lot, the most important one is that there “must be toleration of the maximum individual freedom that is consistent with the integrity of society”. Thus as long as the public acceptance is high, enduring and relentless, none of these principles shall apply as it rises to intolerance, indignation and disgust. But his reasoning behind this approach is that he truly believes that the survival of the society is at stake when public morality is challenged and therefore the society is entitled to preserve itself without vouching for the morality it holds. Based on it, he concluded that if homosexuality is considered such a huge threat then society cannot be stopped from eradicating it.
Upon observation, it rather seems that this argument is based on the conventional idea of society, suggesting that anything that society perceives as immoral will threaten its survival, which seems absurd. This view holds a similar understanding as that of society’s existence being a threat if its members die or new ones take birth. On the other hand, if an artificial definition of society is considered such that it consists of that particular complex of moral ideas and attitudes which its members happen to hold at a particular moment in time, it is intolerable that each such moral status quo should have the right to preserve its precarious existence by force. Thus, Lord Devlin’s argument fails considering both the senses of society.
The second argument: Society’s right to follow its own light
If homosexuality was actually embraced by those who desire them, the society around them would change too. While the exact changes cannot be calculated with precision, we as a society are too sophisticated to suppose that the effects of increased homosexuality be confined to only those who participate in it. This does not entitle society to prohibit such practices. Every custom cannot be conserved by jailing those who dissent it. However, this would require our legislators to be more proactive in determining some moral issues. They will have to weigh the significance of each to determine on what occasions is it necessary to consider immorality sufficient to make a conduct criminal.
How does a legislator decide whether the acts are immoral? Do they turn to science or to organized religion? Even then the consensus has to be taken into consideration as even though the decision must rest on moral faith, democratic principles have to be followed. Besides, it is a community after all which acts when the threats and sanctions of criminal law are brought to bear and therefore it should take some moral responsibility and act in its own lights, i.e., the moral faith of its members.
However, Lord Devlin’s understanding of moral sociology and conventional moral practices seem far less complex and structured than what exists in reality.
Lord Devlin’s morality
His argument based on following the democratic principle of accepting the consensus of moral position which the community has reached would have some plausibility if it meant moral consensus of the community, which are in the discriminatory sense. However, his understanding and definition of moral position are of anthropological sense. He states that the opinions that we must enforce are of that ordinary man who is not expected to have any reason for his judgment; it could even be just a feeling. If a reasonable man with all honesty and passion believes that a practice is immoral irrespective of the belief being right or wrong, that no other right-minded member of society could think otherwise, then in that context the law is immoral. Thus his definition of moral conviction is reflected in his all-time famous remark on homosexuals. “If the ordinary man regards homosexuality “as a vice so abominable that its mere presence is an offence,” this demonstrates for him that the ordinary man’s feelings about homosexuals are a matter of moral conviction.
Therefore his conclusions fail based on this anthropological understanding of moral conviction. Even if it were true that all men think of homosexuality as a vice, it would be a result of prejudice that homosexuals are morally inferior creatures and personal aversion of having blind hate rising from unacknowledged self-suspicion. It is highly probable that the judgment of ordinary man does not rely on any reason and it is just an outcome of following the herd mentality, or it could be based on a preconceived notion of a general moral position he could sincerely hold. On these grounds, the democratic principles do not call for consensus enforcement because prejudices, personal aversions and rationalizations do not justify restricting another’s freedom itself occupies a critical and fundamental position in our popular morality. Subsequently, even the community would not then be allowed to follow its own light because it does not extend that privilege and entitlement to someone who acts based on prejudices, personal aversions and rationalizations.
Therefore, even a conscientious legislator must do his duty to test the credentials of the consensus achieved when he is told that such a moral consensus exists. It is also not expected of him to examine individual beliefs and behaviour. This claim of moral consensus is also not exactly based on a poll rather on the legislator’s understanding of the community’s reactions towards the concerned disfavored practice. Nonetheless, his understanding does include an awareness of the grounds on which those reactions have been raised. If these reactions were supported by public debates, editorial columns, colleagues speeches and testimonials of interested groups, he could sift these arguments and identify which of those are based on prejudices, or rationalizations/generalization etc. This process of reflection might even end in not being able to determine a collective moral consensus.
Thus, it is Lord Devlin’s idea of what counts as the community’s collective moral consensus which is shocking and wrong and not his idea that moral community’s morality counts. It must be obvious so far to understand that it depends on the legislator to apply these tests and be self-critical, so much so that this exercise might even convert his own opinion. To that end, it also depends on his understanding of what collective moral consensus requires and how he applies them. A legislator who would choose to proceed in this way and refuse to take popular indignation, intolerance and disgust as the shared morality of his community will not be guilty of moral elitism. He would just simply not be allowing his own views against those of a public majority that rejects them. He would just be doing his best in enforcing the consensus which is distinct and a significant part of shared morality, essential for society’s existence in the form it is known rather than the opinion that Lord Devlin suggests him to follow.
India on decriminalisation of homosexuality
It started in the year 2009 when in the case of Naz Foundation v. Govt. of NCT of Delhi and Others, the High Court of Delhi held that the law criminalising homosexuality in India is unconstitutional. This decision has been extensively discussed and debated, by constitutional theorists, gay rights activists, and the legal community, generally for its significant contribution to the constitutional theory. The Court’s view was contrary to the populist argument of criminalization i.e. homosexuality is against public morality and thus deserves to be penalized, instead, the Court held that “enforcement of public morality does not amount to a ‘compelling state interest’ to justify the invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others”. It was based on the Constitution’s “goals of the social revolution” as well as the “attempt[s] to foster this revolution by establishing the conditions necessary for its achievement through the commitments in form of Part III and Part IV of the Constitution. Subsequently in 2018, the Supreme Court in the case of Navtej Singh Johar v. Union of India, ruled that consensual homosexual acts would no longer constitute a crime. The historic move reversed Section 377 of the Indian Penal Code which was a legacy of British colonial rule.
The Court differentiated between social morality and constitutional morality and said that “the veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society. Though as for society, it is still seen as a disease/taboo and as an act against nature and familial and social norms.
Conclusion
Homosexuality has been discussed because it is Lord Devlin’s example through which he reflects his understanding of the working of moral principles and criminal law. As for the legislators, they cannot afford to ignore the public outrage. Those reactions would set the tone of political feasibility and will aid in determining the boundaries which with their strategies of persuasion and enforcement can be exercised. It is also important that we must not confuse strategy with justice, or facts of political influence with principles of public morality. Lord Devlin understood these distinctions, but the supporters of his arguments might not.
Reference
- https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjw8tbN4KXyAhWTF3IKHaxbBwsQFnoECB8QAQ&url=https%3A%2F%2Fopen.library.ubc.ca%2Fmedia%2Fdownload%2Fpdf%2F831%2F1.0077744%2F2&usg=AOvVaw30tI1BBghM6r8ohXbHoAcq
- https://global.oup.com/us/companion.websites/9780195387322/chapter3/summary/
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