devlin - PATRICK DEVLIN Morals and the Criminal Law The...

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PATRICK DEVLIN 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 Ustener,  62 (July 30, 1959), 162-63, Law, Liberty and Morality (London,  1963). and The Morality of  the Criminal Law  (Jerusalem, 1965). 2. "Lord Devlin and the Enforcement of Morals," 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
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This note was uploaded on 07/07/2008 for the course PLCS 118 taught by Professor Ian during the Summer '08 term at Yale.

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devlin - PATRICK DEVLIN Morals and the Criminal Law The...

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