The enforcement of morals

Abstract

This collection brings together seven lectures delivered by Lord Devlin in Britain and the United States between 1959 and 1964, examining the relationship between the secular legal system and the moral order. Originating in his critique of the 1957 Wolfenden Report’s assertion of a realm of private morality beyond the law’s reach, Devlin argues that society depends upon a shared moral consensus for its cohesion and survival, much as it relies upon an established government. Consequently, he maintains that society has a prima facie right to use the law to protect its moral structure against internal decay. Rejecting both religious doctrine and an intellectualized “rationalist” morality as authoritative bases for secular legislation, Devlin identifies the benchmark for enforceable morality as the common convictions of the ordinary, reasonable person, epitomized by the juror. In addition to the criminal law, the essays assess how moral considerations interact with quasi-criminal statutes, the law of tort, commercial contract doctrines, and the regulation of marriage and divorce. Throughout, and particularly in his analysis of John Stuart Mill’s philosophy and his responses to academic critics such as H. L. A. Hart, Devlin maintains that while there are no theoretical limits to the state’s power to legislate against immorality, practical law-making must balance the preservation of society against individual freedom, privacy, and the shifting boundaries of public tolerance. – AI-generated abstract.