Morals and the Criminal Law
The Report of the Wolfenden Committee on Homosexual Offences and Prostitution (1957) recommended, among
other things, that "homosexual behavior between consenting adults in private should no longer be a criminal
offence.'' The Report stressed, almost in Mill's language, "the importance which society and the law ought to give
to individual freedom of choice and action in matters of private morality."
In the public debate that followed publication of the Report, Lord Devlin, a distinguished jurist, opposed its
principles (though not, all the specific recommendations) while Professors H. L. A. Hart, Ronald Dworkin, and
Richard Wollheim supported them. At the heart of the controversy was the distinction between "public" and
"private" and, more broadly, the relationship between law, liberty, and morality.
A selection from Lord Devlin's argument (1958) follows.
The Report of the Committee on Homosexual Offences and Prostitution, generally known as
the Wolfenden Report, is recognized to be an excellent study of two very difficult legal and
social problems, But it has also a particular claim to the respect of those interested in
jurisprudence; it does what law reformers so rarely do; it sets out clearly and carefully what in
relation to its subjects it considers the function of the law to be. Statutory additions to the
criminal law are too often made on the simple principle that 'there ought to be a law against it.'
The greater part of the law relating to sexual offences is the creation of statute and it is difficult
to ascertain any logical relationship between it and the moral ideas which most of us uphold.
Adultery, fornication, and prostitution are not,
t From Patrick Devlin,
The Enforcement of Morals
(London, 1965), pp. 125. 1. "Immorality and Treason," The
(July 30, 1959), 162-63,
Law, Liberty and Morality (London,
1963). and The
1965). 2. "Lord Devlin and the Enforcement of
178 --Patrick Devlin
as the Report 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? * * * What is the connexion between crime and sin and to what extent, if at all, should
the criminal law of England concern itself with the enforcement of morals and punish sin or
immorality as such?
For many centuries the criminal law was much concerned with keeping the peace and little, if
at all, with sexual morals. But it would be wrong to infer from that that it had no moral content
or that it would ever have tolerated the idea of a man being left to judge for himself in matters of
morals. The criminal law of England has from the very first concerned itself with moral