Chapter 6, part 1, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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persistent criticism of Mill's liberty principle is its alleged failure to recognize that there are certain important social structures and institutions which a society is justified in protecting even at the cost of coercing individuals whose conduct threatens to undermine them. The most notable recent attempt to support this point of view is by Lord Devlin in his much discussed book, The Enforcement of Morals, in which he explicitly picks on Mill as one of his main targets of attack. Devlin's argument centres on what he regards as the vital function of the criminal law in enforcing the generally shared moral values of a society which are associated with its important institutions. The case for the law's enforcement of society's shared morality is based on several different considerations, most of which are embodied in two doctrines which Hart has labelled the "disintegration thesis" and the "conservative thesis" respectively (Hart). According to the disintegration thesis, a shared morality is what holds a society together, and hence the enforcement of this morality is necessary to prevent society from collapsing, or at least weakening. On the other hand, the conservative thesis maintains that "the majority have a right to follow their moral convictions that their moral environment is a thing of value to be defended from change" (Hart, p. 2). Hart takes this characterization of the conservative thesis from Dworkin. In this chapter I shall discuss each of these theses in turn, and determine the extent to which they are incompatible with Mill's liberty principle.
In putting forward his disintegration thesis, Devlin argues that a society's existence depends on the maintenance of shared political and moral values. Violation of the shared morality loosens one of the bonds which hold a society together, and thereby threatens it with disintegration. The criminal law may therefore be invoked to protect this shared morality in the same way as it is used against treason and [85/86] sedition; this analogy has been effectively criticized by H. L. A. Hart, "Immorality;" see also Joel Feinberg, pp. 38-9. Breaches of the shared morality do not cause harm to other individuals in the way that murder and assault do, but none the less they harm society by undermining its moral structure. Even acts like homosexuality between consenting adults in private can threaten the existence of society, and therefore society has the right to suppress them.
However, there are certain "elastic" principles which determines when society should exercise this right. Devlin's principles are very similar to Fitzjames Stephen's conditions for determining when the criminal law should be used against immoralities; see Stephen, Liberty, pp. 159-60.. As far as possible there should be toleration of individual liberty. The law should also be slow to act in enforcing moral standards, in case the strong feelings against a particular form of conduct should subside and deprive the law of the backing it needs to be effective. Again, privacy should be respected wherever possible. Finally, the law may not be a suitable instrument for upholding all the shared values of a society.
But Devlin believes that "the limits of tolerance" are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of "intolerance, indignation and disgust". If, for example, it is the genuine feeling of society that homosexuality is "a vice so abominable that its mere presence is an offence" (p. 17), then society may eradicate it.
Devlin believes that violations of the shared morality result in two types of harm to society -- tangible and intangible.
The "tangible harm" seems to consist in a diminution of the physical strength of society. There are activities which are quite harmless to society when only a few of its members indulge in them, but which become harmful when the number of participants grows large. Devlin cites drunkenness as an example. He also argues that "unrestricted indulgence in vice" will weaken an individual to the extent that he ceases to be a useful member of society, and society itself will be weakened if it has a sufficient number of such weak members (p. 133). He believes that a vicious minority "diminishes the physical strength of society" (p. 133). Here then is one sense in which violation of the shared morality harms society: society loses its physical strength because immorality breeds physical weakness in its members.
But the argument here does not fit in very well with Devlin's general account of the importance of having a shared morality. [87/88] The tangible harm that certain forms of conduct allegedly cause is not related to the fact that such conduct breaches the shared morality. For if drunkenness, drug-taking, and fornication are physically weakening, then they are so quite independently of whether they violate the shared morality of society. Devlin believes that the cohesiveness of the shared morality does not depend on its quality, but on the fact that it is commonly accepted by the members of the society (p. 114)? This being the case, it is quite possible that the debaucheries of one society would form part of the cherished shared morality of another society. Do they then cease to be physically weakening? If, for example, fornication is physically weakening, then surely it remains so even if it becomes acceptable to the shared morality of society. But if, on the other hand, it is the "unrestricted indulgence" in sexual activities which is physically weakening, then it is difficult to understand what difference it makes when such indulgence takes place within marriage rather than outside it. Of course it may be that the physical weakness stems from attempts to evade apprehension by the law. But in that case the remedy is simply to remove the sanctions of the law.
Again, drinking, drug-taking, homosexuality, abortion and suicide may cause serious social problems if they axe widely and indiscriminately practised. But so also would birth control, or the very different practice of having very large families, or even, as Devlin himself acknowledges, celibacy (p. 112). It is therefore not qua breaches of the shared morality that certain activities can become harmful to society, and hence their being harmful does not in any way support Devlin's disintegration thesis.
But Devlin also postulates a second type of harm caused by deviations from the shared morality of society. This is what he calls the "intangible harm" resulting from the weakening of the commonly held moral beliefs. Most men, he claims, take their morality as a whole, and immoral activity, by weakening belief in one part of society's shared morality, will probably result in the undermining of the whole morality. When there ceases to be common belief in the value of the moral code, society is threatened with disintegration. Whatever is involved in the "disintegration" of [88/89] society, on this argument it is brought about via the rejection of the shared morality.
Devlin stresses that he is not against change as such in the shared morality. But he points out that an existing shared morality cannot be quickly replaced by another shared morality in the way that one changes an old coat for a new one (p. 114). There will first be a long period in which common moral beliefs are absent. It is this "interregnum" which is dangerous. But against this it can be argued that the whole of the existing shared morality is not under threat at the same time. At any one time only parts of the shared morality will be changed, or will be challenged, and there will be other parts which will be sufficiently accepted to ensure the safety and cohesiveness of society. Devlin rejects this possibility because he believes in the connectedness of the different parts of the shared morality. On his view, if one undermines one part of the shared morality, one threatens the whole of that shared morality. He does not explain why he thinks that the shared morality should be connected in this, rather than in another way, nor does he cite evidence in support of his claim [but see Hart, "Social," p. 13].
But suppose that the available evidence is indecisive as between various alternative accounts of the shared morality. Where then does the burden of proof lie? It has been suggested that societies can only be guided by their own lights. If, in a particular society, there is a genuine belief in the disintegration thesis, then this would be adequate justification for Devlin's position (Reynolds, p. 1335). On this view, if, for example, it is generally believed that deviations from the shared sexual morality will bring about the collapse of society, then this is sufficient to justify the suppression of the deviant conduct. But no one with even a minimal respect for individual freedom can possibly accept this. Religious intolerance, racial persecution, and the suppression of the fundamental liberties of minorities, can all be justified on this basis. The belief that tolerance and freedom lead to the collapse of society need not then be supported by evidence. A person may conduct his own life according to his own lights, but where one is going to inflict suffering on others and deprive them of their valued freedom for the sake of avoiding a very speculative harm, one must surely accept the burden of proof. [89/90]
Devlin's "elastic" principles show that he has a general respect for tolerance and individual freedom. But at the same time he rejects Mill's defence of freedom because he thinks that Mill works with too idealistic a picture of human beings. He claims that Mill envisages people earnestly and conscientiously doing what they think is right even though others disapprove of their conduct. But this is seldom true of those who violate the shared morality of society. Devlin thinks that most of them acknowledge the wrongness of their conduct, but still act as they do because of lust and the desire for money. He declares: "Freedom to do what you know to be bad is worthless." [Devlin, p. 14]
But Devlin's argument is not persuasive, and his dichotomy of human motivation is too simple. A person may violate the generally accepted values of his society not because he is too weak to refrain from an action he knows to be wrong, but rather because he believes that in those areas many different modes of conduct are morally permissible. In areas where conduct does not harm others, it is quite common for a person to think that what should be done varies with one's tastes, temperament, and personality. Such a person may not wish to win anyone over to the way of life he has chosen for himself because it is not the only one he regards as acceptable, and it may not suit others. But equally, he does not believe that what he does it wrong, and he would certainly strongly resent any interference. It is much easier to see this point of view if one moves away from the emotionally charged sexual sphere to the choice of hair-styles, clothes, food, drinks, houses, cars, hobbies, etc. In all these cases one may, at least to a certain degree, be indulging oneself, but where such indulgence is not regarded as wrong, there is not strong reason for the person to avoid pleasing himself. Many forms of conduct which Devlin regards as vices are not acknowledged as such by those who engage in them. No doubt such acts are not done out of a deep conviction that they are the uniquely right acts to perform, or for the sake of Queen and country, but simply because they are regarded as enjoyable. A great deal of human freedom is demanded for the sake of being able to engage in such innocuous activities.
Devlin does not succeed in providing good grounds for the [90/91] acceptance of his disintegration thesis. But even if the thesis is true, how does it undermine Mill's liberty principle? Devlin writes of harm to society as opposed to harm to individuals. Perhaps he is here invoking something like Feinberg's distinction between "the public harm principle" and "the private harm principle" (Feinberg, pp. 25, 37). On this account "harm to individuals" is constituted by injury to specific individuals such as is caused by acts of homicide, assault, and robbery. On the other hand, "public harm" consists of the "impairment of institutional practices and regulatory systems that are in the public interest" (Feinberg, p. 25). Feinberg suggests that Devlin's disintegration thesis, with its appeal to the notion of harm to society, is really an application of the public harm principle that coercion necessary to prevent public harm is justifiable (p. 37). If this is the case, then there is no disagreement of principle between Devlin and Mill, for Mill's notion of harm, as explicated in Chapter 4, embraces both private and public harm. If the factual claims made by Devlin are correct, then even on Mill's liberty principle there is a case for the legal enforcement of the shared morality. For on this interpretation of Devlin's disintegration thesis, the harm which justifies legal intervention is not identical with the mere feelings of "intolerance, indignation and disgust" which are aroused when the majority in a society learn that their deeply cherished moral values have been breached. Rather the presence of these feelings become a sign of impending harm if deviations from the shared morality are left unchecked. However, when one moves from his disintegration to his conservative thesis, the notion of public harm is either dropped, or else it is transformed in such a manner as to be indistinguishable from the mere feelings of intolerance, indignation, and disgust in the majority. In either case the conservative thesis is incompatible with Mill's liberty principle. But that is a matter to be explored a little later. Confining ourselves to Devlin's disintegration thesis, it appears that the thesis itself does not amount to a rejection of Mill's view. The crucial issue which divides Devlin from Mill's supporters turns on the apparently false factual claims with which Devlin tries to back up his thesis.
Devlin, Patrick. The Enforcement of Morals. London, 1965.
Feinberg, Joel. Social Philosophy. New Jersey, 1973.
Hart, H. L. A. "Social Solidarity and the Enforcement of Morals" University of Chicago Law Reviews, 35 (1967).
_____ "Immorality and Treason" The Listener, 30 July 1959. Repr. Morality and Law, ed. Richard A. Wasserstrom. Belmont, 1971.Reynolds, Noel B. "The Enforcement of Morals and the Rule of Law" Georgia Law Review, 2 (1977).
Stephen, Fitzjames. Liberty, Equality, Fraternity. Cambridge, 1967.
Last modified 20 April 2001