UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Morals and the enforcement of values : an analysis of the Hart - Devlin debate 1971

You don't seem to have a PDF reader installed, try download the pdf

Item Metadata

Download

Media
UBC_1971_A6_4 W33.pdf
UBC_1971_A6_4 W33.pdf [ 3.95MB ]
UBC_1971_A6_4 W33.pdf
Metadata
JSON: 1.0077744.json
JSON-LD: 1.0077744+ld.json
RDF/XML (Pretty): 1.0077744.xml
RDF/JSON: 1.0077744+rdf.json
Turtle: 1.0077744+rdf-turtle.txt
N-Triples: 1.0077744+rdf-ntriples.txt
Citation
1.0077744.ris

Full Text

'MORALS AND THE ENFORCEMENT OF VALUES An Analysis of the Hart - Devlin Debate by JOHN HARINGTON WADE LL.B., University of Sydney, 1969 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n the Department of LAW We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1971 In present ing th i s thes is in p a r t i a l f u l f i lmen t of the requirements fo r an advanced degree at the Un ivers i ty of B r i t i s h Columbia, I agree that the L ib ra ry sha l l make i t f r e e l y ava i l ab le for reference and study. I f u r ther agree that permission for extens ive copying of th i s thes i s f o r s cho la r l y purposes may be granted by the Head of my Department or by his representat ives . i t is understood that copying or pub l i ca t i on o f th i s thes i s f o r f i nanc i a l gain sha l l not be allowed without my wr i t ten permiss ion. Department of LAW The Un iver s i t y o f B r i t i s h Columbia Vancouver 8, Canada ABSTRACT Morals and the Enforcement of Values - An Analysis of the Hart-Devlin Debate This thesis attempts to discover out of the debate between Lord Devlin and H.L.A. Hart the t h e o r e t i c a l basis of decision-making i n cases where there i s a c o n f l i c t between ind i v i d u a l moral freedom and s o c i a l control. It i s structured i n the form of an analysis of the debate between Devlin and Hart concerning the p r i n c i p l e s for and against the enforcement of morality. There are f i v e main chapters of the thesis and a short conclusion. The f i r s t chapter, headed "The Hart-Devlin Debate", introduces and summarises Devlin's answers and Hart's c r i t i c i s m to the f i r s t two hypothetical questions which Devlin addresses to himself, namely, (1) Has society the r i g h t to pass judge- ment at a l l on matters of morals?, (2) I f society has the r i g h t to pass judgement, has i t also the r i g h t to use the weapon of the law to enforce i t ? It analyses Devlin's attempt to r a t i o n - a l l y convert the descriptive proposition that the majority have power to enforce morality to the normative proposition that society ought to enforce morality. There i s an observation that the co-existing "ri g h t " of individual freedom i s not debated by r a t i o n a l argument. The second chapter under the heading "The Common Morality and the Feelings Test" sets out the feelings test as expounded by Devlin as a means to determine which rules of morality ought to be enforced. There i s a s p e c i f i e d l i s t of the q u a l i f i c a - tions to the feelings test which Hart overlooks for the most part. However I reach the conclusion that i t i s d i f f i c u l t to au t h o r i t a t i v e l y interpret these q u a l i f i c a t i o n s or to give them any substance. Discussion then centres around Hart's objections that the feelings test i s an abdication of reason and a source of potential i n j u s t i c e . These objections are not s u f f i c i e n t basis f o r r e j e c t i n g the feelings t e s t . The t h i r d chapter, calle d "Moral Paternalism", attempts to i s o l a t e the difference i n the views of Hart and Devlin by analysis of Hart's phrase "morality as such." Hart creates an a r t i f i c i a l d i s t i n c t i o n between "paternalism" and"enforcement of pos i t i v e morality," thereby attempting to explain which moral rules ought to be enforced by assigning these two l a b e l s . My conclusion i s that the only r a t i o n a l d i s t i n c t i o n l i e s i n the a v a i l a b i l i t y of empirical evidence to prove physical harm and n o n - a v a i l a b i l i t y of empirical evidence to prove moral harm. Hart has a s t r i c t e r onus of proof than Devlin when i t comes to proving harm to the i n d i v i d u a l . However, i t i s d i f f i c u l t to sustain the d i s t i n c t i o n of physical and non-physical harm as the basis f o r decisions which we../'want" to make. The d i s t i n c t i o n i s rendered impotent i n practice by f i n d i n g elements of harm to society i n the action of the ind i v i d u a l and thereby j u s t i f y i n g enforcement of morals by using M i l l ' s p r i n c i p l e of l i b e r t y . Concepts of private and public harm are e a s i l y used to cloak the rea l basis of the decision. My conclusion i s that the r e a l difference between the views of Hart and Devlin, behind a l l the " p r i n c i p l e s , " i s a difference of value-preference. The fourth chapter, under the heading "Value Difference between Hart and Devlin" discusses the possible reasons f o r the d i f f e r i n g value preferences. It questions whether value preferences can ultimately be traced to prevalent s o c i a l condi- tio n s . There has always been h i s t o r i c a l debate concerning the mysterious balance between ind i v i d u a l freedom and s o c i a l control. In order to a s s i s t i n i d e n t i f y i n g the personal values of Hart and Devlin, t h e i r respective theories are viewed i n terms of three t r a d i t i o n a l i n t e l l e c t u a l antinomies. These antinomies involve the problem of choosing between (a) Public authority or a Platonic e l i t e (b) Individualism or c o l l e c t i v i s m (c) Reason or f a i t h ; i n t e l l e c t or i n t u i t i o n Both Hart and Devlin stand i n d e f i n i t e h i s t o r i c a l i n t e l l e c t u a l positions and t h e i r theories can be compared to the writings of numerous l e g a l and p o l i t i c a l philosophers. I agree with those writers who argue that a c o n f l i c t between two ultimate values cannot be se t t l e d by reason. Can we argue that Hart's value preference f o r individual freedom i n moral matters i s subject to question due to modern s o c i a l conditions? The f i f t h chapter i s given the name "The Irr e v e r s i b l e Disaster Argument." This section analyses Devlin's o r i g i n a l argument that society has the ri g h t to preserve i t s common morality. J u s t i f i c a t i o n of t h i s argument i s attempted i n terms of the rig h t of society to prevent ''irreversible disas- t e r . " This i s an attempt to derive a guiding p r i n c i p l e from an extreme fact s i t u a t i o n i n order to a s s i s t to decide the deadlocked values. In times of emergency or threatened disaster, the value of individual freedom ought to he sub- ordinated to other values. An analogy i s drawn between Devlin's arguments for the preservation of morality and current arguments fo r the preservation of the environment. However Devlin's arguments for the enforcement of morality, even i n terms of the p r i n c i p l e of i r r e v e r s i b l e disaster, can be met by several unanswerable objections. A short attack i s made on Devlin's theory by a s i m i l a r device of applying the theory to a possible interpretation of modern s o c i a l condi- tions. However t h i s c r i t i c i s m does not enable us to subordinate Devlin's value-preference either. The conclusion i s that Hart and Devlin have d i f f e r e n t value-preferences and t h e i r pro- nounced th e o r e t i c a l p r i n c i p l e s only dress these preferences with the garb of r a t i o n a l i t y . Ultimately they are only able to state the theories which they develop to support t h e i r personal values and cannot explain why. Page Chapter I. The Hart-Deviin Debate 1 II . The Common Morality and the Feelings Test 11 I I I . Moral Paternalism 18 IV. Value Difference between Hart and Devlin 30 V. The Ir r e v e r s i b l e Disaster Argument 56 VI. Conclusion 70 Bibliography 73 THE HART-DEVLIN DEBATE In our society, we are constantly searching f o r p r i n c i p l e s to a s s i s t the decision-maker answer the question, "what should I do?" One area of our search involves an attempt to reconcile the right of the indi v i d u a l to freedom with the rig h t of society to i n t e r f e r e with the i n d i v i d u a l . A decision-maker, whether l e g i s l a t i v e or j u d i c i a l , can well ask, "Upon what p r i n c i p l e s should I decide whether to in t e r f e r e with in d i v i d u a l freedom?" In a democracy he w i l l usually be cal l e d upon to explain the reasons f o r his decision. Lord Devlin addressed himself to t h i s problem i n the Maccabaean Lecture on Jurisprudence which was delivered i n 1959 under the t i t l e "The Enforcement of Morals." 1 To t h i s lecture p the English j u r i s t Herbert Hart r e p l i e d . This jurisprudential debate discusses the problem of r e c o n c i l i a t i o n of ind i v i d u a l freedom with s o c i a l control and emphasises the s p e c i f i c question whether morals should be l e g a l l y enforced. Just how f a r has t h i s debate provided assistance to the decision-maker? Have any decisive p r i n c i p l e s emerged i n order to answer the question, "what should I do?" Before discussing the the o r e t i c a l consideration i t i s worthwhile to note that there i s general agreement that two Now included i n a book c a l l e d The Enforcement of Morals, by Patrick Devlin, London, Oxford University Press, 1965. ^"Law, Lib e r t y and Morality," (1963) and "The Morality of the Criminal Law," (1965) by H.L.A. Hart. p r a c t i c a l c o n s i d e r a t i o n s a r e r e l e v a n t , t h o u g h n o t n e c e s s a r i l y d e c i s i v e . W h e r e s o c i e t y i s c o n s i d e r i n g s o m e i n t e r f e r e n c e w i t h t h e f r e e d o m o f a c t i o n o f a n i n d i v i d u a l , w e s h o u l d a s k , i n t e r a l i a : ( a ) W i l l i t b e p o s s i b l e t o e n f o r c e t h e " i n t e r f e r i n g " l a w w i t h a r e a s o n a b l e d e g r e e o f e f f e c t i v e n e s s ? ( b ) W i l l t h e a t t e m p t e d e n f o r c e m e n t o f t h e " i n t e r f e r i n g " l a w c a u s e m o r e h a r m t h a n t h e b e n e f i t s w h i c h c o u l d p o s s i b l y b e a t t a i n e d b y e n f o r c e m e n t ? T h e r e i s a m o d e r n t e n d e n c y t o s a y t h a t t h e s e p r a c t i c a l c o n s i d - e r a t i o n s w i l l o f t e n b e d e c i s i v e b e c a u s e o f t h e i n c o n c l u s i v e n e s s o f t h e o r e t i c a l p r i n c i p l e s . W h e n i t i s a r g u e d , f o r e x a m p l e , t h a t t h e l a w s r e s t r i c t i n g p o s s e s s i o n o f m a r i h u a n a s h o u l d b e a b o l i s h e d , i s t h e a r g u m e n t b a s e d u p o n t h e p r a c t i c a l r e a s o n s j u s t m e n t i o n e d , o r a p r e d o m i n a n t v a l u e o f p r i v a c y , o r a t h e o r y o f h a r m t o t h e i n d i v i d u a l o r t o o t h e r s , o r a c o m b i n a t i o n o f t h e s e r e a s o n s ? We a r e o b l i g e d t o a t l e a s t a t t e m p t t o e x p l a i n o u r d e c i s i o n s . I n o r d e r t o d i s c u s s t h e t h e o r e t i c a l c o n s i d e r a t i o n s , D e v l i n s e t s o u t t h r e e q u e s t i o n s a d d r e s s e d t o h i m s e l f s 1. H a s s o c i e t y t h e r i g h t t o p a s s j u d g e m e n t a t a l l o n m a t t e r s o f m o r a l s ? O u g h t t h e r e , i n o t h e r w o r d s , t o b e a p u b l i c m o r a l i t y , o r a r e m o r a l s a l w a y s a m a t t e r f o r p r i v a t e j u d g e m e n t ? 2 . I f s o c i e t y h a s t h e r i g h t t o p a s s j u d g e m e n t , h a s i t a l s o t h e r i g h t t o u s e t h e w e a p o n o f t h e l a w t o e n f o r c e i t ? 3 . I f s o , o u g h t i t t o u s e t h a t w e a p o n i n a l l c a s e s o r o n l y i n s o m e ; a n d i f o n l y i n s o m e , o n w h a t p r i n c i p l e s s h o u l d i t d i s t i n g u i s h ? 3 - - ' D e v l i n , p . 7 - 8 . In answer to the f i r s t question, Devlin notes that people do i n fact speak as though there i s a public morality. 4 Even the Wolfenden Report "takes i t for granted that there i s i n existence a public morality which condemns homosexuality and pr o s t i t u t i o n . " 5 However i t i s always d i f f i c u l t to convert a descriptive proposition such as t h i s into a normative proposi- t i o n . The fact that there i s a public morality cannot neces- s a r i l y mean that there ought to be a public morality. How can Devlin turn a factual description into a right? We w i l l see that the reasoning he chooses meets with convincing c r i t i c i s m from Hart. While answering the f i r s t question, Devlin's arguments encompass the second question also. He states that "society i s not something that i s kept together physically; i t i s held together by the i n v i s i b l e bonds of common thought"^ and i f the common thought i s not enforced then there i s a danger that society w i l l disintegrate. Society accordingly has a prima f a c i e r ight to enforce the common morality i n order to ensure s u r v i v a l . Devlin,' endeavouring to locate a "rig h t , " appeals to the most basic r i g h t of a l l — t h e Hobbesian right of survival and self-defense. Society, threatened with disintegration, has a r i g h t to defend i t s e l f by enforcing i t s common morality which i s the essence of society. Why i s i t that Devlin does not rest n Report of the Committee on Homosexual Offences and Pr o s t i t u t i o n (Cmnd. 247, 1 9 5 7 ) . ^Devlin, p. 9« 6 I b i d . , p. 1 0 . his argument on the superior power of the majority over the minority? The reasons that Devlin t r i e s to avoid arguing i n terms of power are that to base the j u s t i f i c a t i o n f o r the enforcement of morals upon the brute force of the majority i s not a s a t i s f a c t o r y moral argument and would c l e a r l y pave the way f o r blatant abuse of majority power. In Rousseau's words "To y i e l d to the strong i s an act of necessity, not of w i l l . At most i t i s the r e s u l t of a dictate of prudence. How, then, can i t become a duty?""'1' It appears that Devlin also wishes to argue fo r a right of enforcement above and beyond the democratic r i g h t of a government elected by the majority. In a democracy, a minority has c e r t a i n acknowledged rights q u a l i f y i n g the right of majority rule (e.g. at l e a s t equal protection and due process). Therefore to base the r i g h t of enforcement upon the r e c o n c i l i a - t i o n of democratic majority and minority r i g h t s i s to restate the problem of the whole debate f o r the r e l a t i o n s h i p of i n d i v i d - ual freedom and s o c i a l control i s a category within the broader relationship&of minority and majority r i g h t s . The r i g h t of s u r v i v a l i s unqualified; the r i g h t of a democratic majority to rule i s q u a l i f i e d ; Devlin t r i e s to strengthen the case f o r the enforcement of common morality by f i t t i n g i t into the former r i g h t . Hart points out two major flaws i n Devlin's arguments* Social Contract by J.J. Rousseau (New Yorkj Oxford University Press), p. 172. ( 1 ) If society, on the p r i n c i p l e of s u r v i v a l , can enforce i t s common morality, then society w i l l "be able to oppose any moral change, whether good or bad, and merely preserve the status quo. (2) There i s no necessary causal r e l a t i o n s h i p between a change i n the common morality and a physical collapse of society. On the other hand, i f Devlin i s defining society i n terms of ideas and morality, then 1he i s merely s t a t i n g a truism, namely that society has a r i g h t to prevent change of i t s common morality because otherwise i t s common morality w i l l change. In Hart's words "...even i f the conventional morality did so change, the society i n question would not have been destroyed or subverted. We should compare such a development not to the v i o l e n t overthrow of government but to a peaceful consti- t u t i o n a l change i n i t s form, consistent not only with the preservation of a society but with i t s advance."^ However, the i n t e l l e c t u a l weaknesses i n Devlin's argu- ment that the enforcement of common morality i s a strong r i g h t are subject to two q u a l i f i c a t i o n s . F i r s t l y , Hart f e e l s that Devlin's argument escapes complete demolition by some helpful confusion. "There i s no evidence that the preservation of a society requires the enforcement of i t s morality "as such." His (Devlin's) p o s i t i o n only appears to escape t h i s c r i t i c i s m by a confused d e f i n i t i o n of what a society i s . " 9 8Hart ( 1 9 6 3 ) , p. 5 2 . 9Hart ( 1 9 6 3 ) . p. 82. Secondly, just as Devlin has d i f f i c u l t y proving ra t i o n - a l l y that enforcement of common morality by society i s a "r i g h t " , both Hart and Devlin would have equal d i f f i c u l t y proving that the opposite and yet co-existent value i n the debate, i n d i v i d - ual freedom, i s a " r i g h t . " It i s true that both Hart and Devlin place high value upon ind i v i d u a l freedom, that they f e e l i t ought to be a fundamental r i g h t , that i t i s predomin- ant among the natural r i g h t s of man. However, to argue r a t i o n a l l y why individual freedom i s a rig h t i s a t r a d i t i o n - a l l y d i f f i c u l t task. We end up discovering that t h i s " r i g h t " i s based upon fe e l i n g s , values, precedent or natural law. Devlin's attempt to show that enforcement of the common morality i s a paramount ri g h t i s weak. However, we should r e a l i z e that Hart does not argue the paramount value of the right of individual freedom on empirical or cognitive grounds— he simply assumes i t or perhaps bases i t upon i n t u i t i o n . In answer to the second r h e t o r i c a l question, 1*^ Devlin states that the law has a prima f a c i e right to enter the 11 f i e l d of enforcement of morality, though having entered the f i e l d , actual enforcement of morals should only take place i n l i m i t e d circumstances.^ Hart on the other hand says that the law prima fa c i e has no ri g h t to enter the f i e l d of enforcement 1 0 D e v l i n , p. 8 . n l b i d . , p. 1 1 . 1 2 I b i d . , pp. 1 6 - 2 0 . of morality except where harm to others i s proved. 1 3 Devlin concludes, "I think, therefore, that i t i s not possible to set t h e o r e t i c a l l i m i t s to the power of the State to l e g i s l a t e against immorality." 1^ However i t i s not c l e a r what Devlin means by "power" because she does i n fact set t h e o r e t i c a l l i m i t s to the " r i g h t " of the State to l e g i s l a t e against immorality. 1^ Dean Rostow's description of Devlin's p o s i t i o n i n terms of Hohfeldian analysis i s helpful to avoid t h i s confusion between power and r i g h t . "The correct Hohfeldian way of putting S i r Patrick's thesis, I should think, would be to say that the state has the "power" to protect i t s public morality through the law; that the c i t i z e n has no "immunity" against such action; that the state, however i s under the "duty" i n exercising i t s power to enforce and respect c e r t a i n equally r e a l " r i g h t s " and " p r i v i l e g e s " of i t s c i t i z e n s , i n accordance with the p r i n c i p l e s governing B r i t i s h lawmaking to whicn he addressed so considerable a part of his l e c t u r e ; and that i n some instances the state may have a " d i s a b i l i t y " ; or perhaps may not have the " p r i v i l e g e " to q u a l i f y these r i g h t s and p r i v i l e g e s of the c i t i z e n even i n the name of s e l f - d e f e n c e . " 1 6 This Hohfeldian analysis of Devlin's arguments i s 1 3 H a r t ( 1 9 6 3 ) , p. 5 . 14 Devlin, p. 1 2 . •^Devlin, pp. 1 6 - 2 0 . 16 Rostow—The Enforcement of Morals, i 9 6 0 , Cambridge L.J. 174 at 1 9 5 . helpful because i t answers the f i r s t two questions i n terms of power and throws the crux of the whole debate upon answer- ing the t h i r d question. In terms of power, i t i s analogous to a s i t u a t i o n where Devlin would say, "Yes, the state has t e r r i t o r i a l j u r i s d i c t i o n i n a l l these morality cases and now must consider each case on i t s merits." Whereas Hart would say, "The state has no t e r r i t o r i a l j u r i s d i c t i o n i n morality cases though t h i s w i l l require a p r e - t r i a l hearing to determine whether each p a r t i c u l a r case contains a morality issue." An answer i n terms of j u r i s d i c t i o n a l power i s r a t i o n a l but i s an answer which i n i t i a l l y avoids the moral correctness of the exercise of that power i n s p e c i f i c cases. Devlin obviously •fries to include the moral issue i n his answers to the f i r s t two questions. But i n fact i t i s not clear whether he has answered i n terms of power or r i g h t . As shown before, he t r i e s unsuccessfully to r a t i o n a l i s e the existence of a r i g h t based on more than mere force. 1'' Facing the moral dilemma and the existence of ri g h t s cannot be s t a l l e d any further when Devlin attempts to answer 1 ft the t h i r d question, " I f society has the r i g h t to use law to enforce public morality, ought i t to use enforcement i n a l l cases or only i n some; and i f only i n some, on what p r i n c i p l e s should i t distinguish? Hart's answer at f i r s t seems clear — See previous discussion pp. 3-4. "...on the narrower issue relevant to the enforcement of morality M i l l seems to me to be r i g h t . " 1 9 M i l l ' s p r i n c i p l e i s found i n his famous essay "On L i b e r t y . " "The object of t h i s Essay i s to assert one very simple p r i n c i p l e , as e n t i t l e d to govern absolutely the dealings of society with the in d i v i d u a l i n the way of compulsion and control, whether the means used be physical force i n the form of l e g a l penalties, or the moral coercion of public opinion. That p r i n c i p l e i s , that the sole end f o r which mankind are warranted, i n d i v i d u a l l y or c o l l e c t i v e l y , i n i n t e r f e r i n g with the l i b e r t y of action of any of t h e i r number, i s s e l f - protection. That the only purpose for which power can be r i g h t f u l l y exercised over any member of a c i v i l i s e d community, against his w i l l , i s to prevent harm to others. His own good either physical or moral, i s not s u f f i c i e n t warrant." 2 0 It was the use of t h i s p r i n c i p l e as adopted by the Wolfenden 21 Committee that o r i g i n a l l y prompted Devlin into taking his p o s i t i o n as stated i n the Maccabaean Lecture. Devlin argues that M i l l ' s p r i n c i p l e i s only one guideline among others. "The error of jurisprudence i n the Wolfenden Report i s caused by the search f o r some single p r i n c i p l e to explain the d i v i s i o n between crime and s i n . " 2 2 The Wolfenden Committee put forward "Our own formulation of the function of the criminal law so f a r as i t concerns the subjects of t h i s enquiry. In t h i s f i e l d i t s function as we see i t , i s to preserve public order and decency, to protect the Hart, 1 9 6 3 , p. 5 . 2 0 John Stuart M i l l , U t i l i t a r i a n i s m , L i b e r t y and Representative Government (Everyman's), p. 7 2 . 21 Report of the Committee on Homosexual Offences and P r o s t i t u i o n , 1 9 5 7 . c i t i z e n from what i s offensive or injurious, and to provide s u f f i c i e n t safeguards against e x p l o i t a t i o n and corruption of others p a r t i c u l a r l y those who are s p e c i a l l y vulner- able because they are young, weak i n body or mind, inexperienced, or i n a state of special physical, o f f i c i a l or economic independence. It i s not, i n our view, the function of the law to intervene i n the private l i v e s of c i t i z e n s , or to seek to enforce any particu- l a r pattern of behaviour further than i s necessary to carry out the purposes we have outlined. " 2 3 Although Devlin rejects M i l l ' s p r i n c i p l e as adopted by Hart as an absolute guide, he s t i l l considers i t to be one relevant p r i n c i p l e among other considerations. "Morality i s a sphere i n which there i s a public interest and a private interest, often i n c o n f l i c t , and the problem i s to reconcile the two. This does not mean that i t i s impossible to put f o r - ward any general statements about how i n our society the balance ought to be struck. Such statements cannot of t h e i r nature be r i g i d or precise; they would not be designed to circumscribe the operation of the law-making power but to guide those who have to apply i t . 23 Para. 1 3 . T H E COMMON M O R A L I T Y A N D T H E F E E L I N G S T E S T W h a t a r e t h e g e n e r a l s t a t e m e n t s a n d g u i d e l i n e s w h i c h D e v l i n l a y s d o w n t o a s s i s t o u r p u z z l e d l e g i s l a t o r a n s w e r t h e q u e s t i o n , " W h a t s h o u l d I d o ? " H e o u g h t t o e n f o r c e , w i t h c e r t a i n q u a l i f i c a t i o n s , t h e m o r a l j u d g e m e n t s h e l d b y t h e h y p o - t h e t i c a l r e a s o n a b l e m a n w h o " i s n o t e x p e c t e d t o r e a s o n a b o u t a n y t h i n g a n d w h o s e j u d g e m e n t m a y b e l a r g e l y a m a t t e r o f f e e l i n g . " 2 ^ T h e r e i s t h e i m m e d i a t e d a n g e r t h a t t h i s g e n e r a l c r i t e r i a w i l l b e t r e a t e d a s a n a b s o l u t e p r i n c i p l e a n d D e v l i n h a s t a k e n p a i n s t o w a r n u s t h a t m o r a l d e c i s i o n s c a n n o t b e m a d e b y f o l l o w i n g a s i n g l e p r i n c i p l e . A c c o r d i n g l y , t h e q u a l i f i c a - t i o n s u p o n t h e e n f o r c e m e n t o f t h e c o m m o n m o r a l i t y o f t h e r e a s o n a b l e m a n a r e a s f o l l o w s s (1) T h e r e m u s t b e t o l e r a t i o n o f t h e m a x i m u m i n d i v i d u a l 2 6 f r e e d o m t h a t i s c o n s i s t e n t w i t h t h e i n t e g r i t y o f s o c i e t y . ( 2 ) A s t h e l i m i t s o f m o r a l t o l e r a n c e s o m e t i m e s s h i f t w i t h c h a n g i n g f a s h i o n , t h e l a w o u g h t t o b e s l o w t o i n t e r v e n e i n a n y n e w m o r a l m a t t e r . 2 " ? 2 8 ( 3 ) A s f a r a s p o s s i b l e , p r i v a c y s h o u l d b e r e s p e c t e d . ( 4 ) T h e l a w s h o u l d b e c o n c e r n e d w i t h t h e m i n i m u m a n d n o t w i t h t h e m a x i m u m o f m o r a l i t y . 2 9 2 5 D e v l i n » P . 15. 2 6 I b i d . , P« 1 6 . 2 7 I b i d . , P- 1 8 . I b i d . , P . 1 8 . 2 9 . 7 I b i d . , P . 19. (5) Before society can put a practice beyond the l i m i t s of tolerance, the common morality or feelings must make a deliberate judgement that the practice i s injurious to society.3 0 (6) The common morality which ought to be enforced must only be those moral rules the breach of which causes i n t o l e r - ance, indignation and disgust. Or, those moral rules, the breach of which would s t i l l cause us intense feelings of abom- ina t i o n even a f t e r calm and dispassionate consideration—"mere disapproval i s not enough to j u s t i f y interference." 3" 1" (7) Any law on matters of morality ought to be "deeply imbued with a sense of s i n . " 3 2 It i s to thi s " f e e l i n g s t e s t " of Devlirfs that Hart reacts most strongly and i t i s here that we should look to f i n d the core of disagreement between Hart artd Devlin. Hart's objections are as follows: (1) The fe e l i n g s t e s t amounts to an abdication of reason to the mere feelings of the reasonable man. We should not surrender the process of decision-making to feelings and passion e s p e c i a l l y when such a v i t a l value as individual freedom i s involved. (2) Devlin's hope i s that the reasonable man w i l l include the qu a l i t y of justice i n his feelings i n most cases. Hart i s not as w i l l i n g to take t h i s r i s k . The fe e l i n g s t e s t 30 ; Ibid., p. 17. 3 1 I b i d . , p. 17. 3 2 I b i d . , p. 24. can be used as a method of preserving prejudices, bigotry and the status quo i n moral b e l i e f s . "It seems f a t a l l y easy to believe that l o y a l t y to democratic p r i n c i p l e s e n t a i l s accept- ance of what may be termed moral populism: the view that the majority have a moral right to dictate how a l l should l i v e . "33 —"To use co-ercion to maintain the moral status quo at any point i n a society's history would be a r t i f i c i a l l y to arrest the process which gives s o c i a l i n s t i t u t i o n s t h e i r value."34 (3) The feelings test w i l l involve enforcement of mere morality or "morality as such" 3^ That i s , enforcement of a moral ru l e f o r i t s own sake with l i t t l e or no evidence that breach of the rule w i l l cause harm to the actor or to others. The s p i r i t of Hart's objections i s enti c i n g as he apparently champions individual freedom and predicts the dicta- t o r i a l abuses by the majority which are made possible i f we agree with Devlin's feelings t e s t . But as Hart enlarges upon his objections we f i n d the apparent differences diminishing. Let us now consider Hart's objections more f u l l y . ( l ) It can be argued that Devlin's feelings test does not amount to an unnecessary abdication of reason. It has a precondition of calm and dispassionate consideration of the issue before acting upon f e e l i n g s . 3 6 Rostow defends Devlin at 3 3 H a r t , (1963), p. 79. 3 \ i a r t , (1963), p. 75. 3 5 H a r t , (1963), pp. 18, 23, 25, 32, 41, 82. 36 . , x • Devlin (ix) of Preface length concerning t h i s c r i t i c i s m and concludes "Nothing i n S i r Patrick's l e c t u r e would weaken the primary importance of detached and dispassionate scholarship, conducted at the highest l e v e l of reasonableness we can a t t a i n i n the work of evidence i s unavailable or inconclusive, and our reason s t i l l leaves us alternate courses of action, where do we turn? Devlin's answer i s that we ought to apply the f e e l i n g s test that the feelings test plus q u a l i f i c a t i o n s can r e s u l t i n a t r o c i t y only shows that the test can be wrongly used and not that i t i s a f a l s e t e s t . Likewise Hart would argue that the a p p l i c a t i o n of M i l l ' s p r i n c i p l e of l i b e r t y i n the area of morals i s subject to abuse. However such abuse i n practice only shows that the p r i n c i p l e i s being wrongly used, not that i t i s wrong i n i t s e l f . The problem i s that neither p r i n c i p l e has s u f f i c i e n t content to indicate when either i s being wrongly used. Thus both Hart and Devlin have personal concepts of how each wants the p r i n c i p l e of l i b e r t y and the feelings t e s t respectively used. If the p r i n c i p l e and test are not interpreted according to t h e i r own concepts then each w i l l l a b e l i t as a misuse or f i n d an exception. One d i f f i c u l t y which arises i s that these enumerated q u a l i f i c a t i o n s can be looked upon as a mere sop for those s o c i a l reform, and the reform of law ."37 When empirical with i t s q u a l i f i c a t i o n s • 3 8 Devlin would argue that the fact 37 Refer to footnote 16 at p. 197. who c r i t i c i s e the feelings test and fear destruction of indi v i d u a l freedom. Devlin himself inserts the q u a l i f i - cations because of his own uneasiness about a p r i n c i p l e which stipulates the absolute enforcement of public opinion. The question i s , "Do the q u a l i f i c a t i o n s have any substance?" It i s true that they do require a procedural pause between passion and action i n the hope that r e f l e c t i o n and discussion w i l l modify u n j u s t i f i e d intolerance. A man can act immediately on sight to imprison a homosexual because he f e e l s intolerance, indignation and disgust. But the q u a l i f i c a t i o n s require a r e f l e c t i v e pause between the intolerance and the enforcing action. I f the f e e l i n g of intolerance i s not f i r s t l y subjected to the q u a l i f i c a t i o n s then the decision-maker i s acting i n procedural breach of the p r i n c i p l e . However the q u a l i f i c a t i o n s o f f e r no d e f i n i t e test as to what amounts substantively to un j u s t i f i e d intolerance. Once the procedural aspects are s a t i s f i e d , the content i s unfettered. As previously mentioned, the feelings test i s not a p r i n c i p l e of guidance at a l l i f we must r e f e r every case, or even the d i f f i c u l t cases only, to the author f o r i n t e r p r e t a t i o n . Although he i s sometimes ambiguous, Devlin expects that there ought to be some r a t i o n a l discussion before a decision to enforce common morality i s made. "...the moral judgement of society must be something about which any twelve men or women drawn at random might a f t e r discussion be expected to be unanimous."39 Devlin enlarges upon t h i s point i n the preface to his book which was compiled several years a f t e r d e l i v e r i n g the o r i g i n a l Maccabaean l e c t u r e . "The exclusion of the i r r a t i o n a l i s usually an easy and comparatively unimportant process. For the d i f f i c u l t choice between a number of r a t i o n a l conclusions the ordinary man has to r e l y upon a 'fe e l i n g ' f or the right answer. Reasoning w i l l get him nowhere." (2) Devlin, l i k e Hart, obviously r e a l i z e s the dangers of unrestrainedly enforcing the feelings of the reasonable man or the common morality. History i s f u l l of examples of a t r o c i t y and i n j u s t i c e i n f l i c t e d upon a minority because majority opinion dictated that i t was r i g h t . The Spanish I n q u i s i t i o n and Nazi Germany are t e r r i f y i n g instances. That i s surely why Devlin attempts to l i m i t the operation of the feelings test by the q u a l i f y i n g p r i n c i p l e s enumerated previously. It has already been noted how d i f f i c u l t i t i s to f i n d substantive meaning fo r these q u a l i f y i n g p r i n c i p l e s . They tend to beg the question of what amounts to the maximum tolerable l e v e l of indi v i d u a l freedom. Accordingly, t h i s absence of a d e f i n i t e safety valve on the feelings test tends to substantiate Hart's fears. On the other hand Hart argues that because enforcement of feelings held by the majority i s often a source of i n j u s t i c e , then feelings ought not to be a guide for enforcement. But because majority rule has been abused, t h i s does not mean that as a matter of p r i n c i p l e majority opinion ought not to be ZKJ Devlin ( v i i i ) of Preface. enforced. Abuse of a rule i n practice does not necessarily- mean that that rule ought not to exist. Fear that a delicate glass stopper w i l l be broken i s not a s u f f i c i e n t reason to keep i t hidden while safely using the more s o l i d decanter. As the glass stopper i s a necessary and functional part of the decanter i t should be used though with constant reminders of i t s true function and delicacy. Just as enforcement of majority opinion i s subject to abuse, so i s individual freedom of action which by gradual process can undermine a value important to human l i f e . In other words, both enforcement of morals and freedom should be subject to q u a l i t y control, not exclusion. "...Hart cannot prove that the j u s t i f i c a t i o n which Devlin offers f o r the enforcement of morals i s i l l u s o r y or outmoded; he can only appeal to our own moral sense that i t i s not worth the pric e . " Perhaps i t i s possible today that our moral sense t e l l s us that enforcement of morals i s worth the price (see l a t e r under discussion of " i r r e v e r s i b l e d i s a s t e r " ) . A.R. Blackshield, Sydney Law Review 1 9 6 5 - 6 7 , pp. 441 at 4 5 0 . MORAL PATERNALISM (3) Hart points out on several occasions that Devlin's feelings test can involve the enforcement of mere morality or o ho "morality as such." It i s out of t h i s c r i t i c i s m that I w i l l attempt to explain a l o g i c a l difference i n the views of Hart and Devlin. What does Hart mean by "morality as such?" In other places he refers to i t as the enforcement of morality 43 f o r i t s own sake or the enforcement of p o s i t i v e morality. To answer t h i s question, we should f i r s t l y note that Hart, i n opposition to M i l l , says that i n modern society we ought not to exclude paternalism as a motive f o r passing l e g i s l a t i o n . ^ But then Hart creates his own d i s t i n c t i o n within M i l l ' s theory and says that M i l l was correct to the extent that he opposed the use of the criminal law as a means of enforcing positive morality. Somewhere Hart sees a v i t a l yet unstated d i s t i n c t i o n between paternalism and enforcing po s i t i v e morality. "The neglect of the d i s t i n c t i o n between paternalism and what I have termed l e g a l moralism i s important as a form of a more general e r r o r . I t i s d i f f i c u l t to immediately discover a r a t i o n a l basis f o r t h i s d i s t i n c t i o n f o r the enforcement of p o s i t i v e morality i s undoubtedly one form of paternalism. Tip ^ H a r t (1963), pp. 18, 23, 25 , 32, 41, 82. 43 e.g. pp. 23, 20. ^ I b i d . , pp. 31-32. 45 Ibid., p. 33. Hart implies that there are certain moral rules which exis t f o r t h e i r own sake. But no moral rule exists f o r i t s own sake; moral rules are expounded f o r the "good" of mankind even though c e r t a i n moral rules may be mistaken. The concept of what i s good for mankind w i l l vary from group to group or even from person to person. Also, each group or person w i l l have d i f f e r e n t moral rules i n order to a s s i s t i n a t t a i n i n g i t s i n d i v i d u a l concept of goodness. The fact that these moral rules are d i f f e r e n t or even i n opposition, does not immediately concern t h i s argument. The v i t a l point i s that the motive behind each moral rule i s the "good" of mankind. The p r e s c r i p t i o n of any moral rule i s never motivated by a desire to cause harm though i n fa c t moral rules may be bad and i n fact cause harm. Therefore a l l moral rules,whenever and wherever seriously prescribed, are f o r the "good" of man i n accordance with each respective person's d e f i n i t i o n of good. When Hart says that morality "as such" should not be enforced, he cannot be saying that morality should not be enforced. Rather he i s saying that morality which does not embody a certain concept of goodness which he personally supports should not be enforced. Morality "as such" should not be enforced, but morality should be enforced i f i t i s the kind with which I agree. "...We do not have any moral For d i f f e r e n t modern concepts of "good" see "An Introduction to Philosophical Analysis" by John Hospers, p. 4 4 9 . o b l i g a t i o n s , p r i m a f a c i e o r a c t u a l , t o d o a n y t h i n g w h i c h d o e s n o t , d i r e c t l y o r i n d i r e c t l y , h a v e s o m e c o n n e c t i o n w i t h w h a t m a k e s s o m e b o d y ' s l i f e g o o d o r b a d , b e t t e r o r w o r s e . . . m o r a l i t y w a s m a d e f o r m a n , n o t m a n f o r m o r a l i t y . " ^ ? T h e r e f o r e t o e n f o r c e p o s i t i v e m o r a l i t y o r m o r a l i t y a s s u c h i s o n l y t o p a t e r n a l l y i m p o s e a c o n c e p t o f r i g h t o r g o o d n e s s ( w h i c h m a y b e f a l s e ) u p o n a n o t h e r i n d i v i d u a l . H a r t h a s c o n f u s e d t h e i s s u e b y c r e a t i n g a n a r t i f i c i a l d i s t i n c t i o n b e t w e e n " p a t e r n a l i s m " a n d " e n f o r c i n g p o s i t i v e m o r a l i t y . " I t a p p e a r s t h a t t h e r e a l d i s t i n c t i o n h e i s t r y i n g t o m a k e i s b e t w e e n g o o d p a t e r n a l i s m a n d b a d p a t e r n a l i s m . T h e l a b e l s o f " p a t e r n a l i s m " o r " e n f o r c i n g m o r a l i t y a s s u c h " a r e r a t i o n a l i s a t i o n s f o r a d e c i s i o n a l r e a d y m a d e . T h e d i s t i n c t i o n w h i c h i s t h e b a s i s o f a d e c i s i o n l i e s w i t h i n H a r t ' s o w n c o n c e p t o f g o o d a n d b a d . I n a l a t e r e s s a y , " M o r a l s a n d C o n t e m p o r a r y S o c i a l R e a l i t y , " D e v l i n d i s c u s s e s p o s s i b l e m e a n i n g s t o H a r t ' s d i s t i n c t i o n b e t w e e n p a t e r n a l i s m a n d e n f o r c e m e n t o f p o s i t i v e m o r a l i t y b u t f i n d s i t d i f f i c u l t t o s u s t a i n s u c h a d i s t i n c t i o n i n p r a c t i c e a s a c o n c l u s i v e o r e v e n h e l p f u l g u i d e l i n e . H e c o n c l u d e s " I f i t i s p o s s i b l e , w h i c h I d o u b t , t o d r a w a t h e o r e t - i c a l d i s t i n c t i o n b e t w e e n m o r a l p a t e r n a l i s m a n d t h e e n f o r c e m e n t o f m o r a l i t y , i t i s n o t o n e t h a t i s r e l e v a n t t o t h e p r e s e n t a r g u m e n t . T h e i s s u e i s w h e t h e r t h e r e i s a r e a l m o f p r i v a t e m o r a l i t y a n d i m m o r a l i t y t h a t i s n o t t h e l a w ' s b u s i n e s s . j— . E t h i c s , p . 3 ? . W i l l i a m K . F r a n k e n a . 4 8 T h i s e s s a y i s a l s o f o u n d i n D e v l i n ' s b o o k T h e E n f o r c e - m e n t o f M o r a l s a t p . 1 2 4 . Paternalism, unless i t i s l i m i t e d i n some way as yet unstated, must, as I have pointed out, make a l l morality the law's business."^9 Accordingly, the enforcement of morality as such i s equivalent to "bad" paternalism. And "morality as such" includes those moral rules where there i s no necessary and resultant harm when a breach of that morality takes place. Now l e t us assume that Hart, as he purports to do, i s using M i l l ' s p r i n c i p l e as his main guideline f o r determinirig whether morals should be enforced. For convenience, we can summarise M i l l ' s p r i n c i p l e of l i b e r t y — " S o c i e t y should not in t e r f e r e with the freedom of action of an ind i v i d u a l unless that action i s causing harm to others." But Hart i s no longer w i l l i n g i n our modern society to apply M i l l ' s p r i n c i p l e i n any area other than morals and he thereby immediately creates a d i s t i n c t i o n between moral harm and physical harm. : "In Chapter Five of his essay M i l l carried his protests against paternalism to lengths that may now appear to us f a n t a s t i c . He ci t e s the example of r e s t r i c t i o n s of the sale of drugs, and c r i t i c i s e s them as interferences with the l i b e r t y of the would- be purchaser rather than that of the s e l l e r . No doubt i f we no longer sympathise with t h i s c r i t i c i s m t h i s due i n part t o a general de- cl i n e i n the b e l i e f that individuals know t h e i r own interests best, and to an increased awareness of a great range of factors which diminish the significance to be attached to an apparently free choice or to consent. Choices may be made or consent given without adequate r e f l e c t i o n or appreciation of the consequences; or i n pursuit of merely trans- i t o r y desires; or i n various predicaments when the judgement i s l i k e l y to be clouded; Ibid., p. 1 3 7 . or under inner psychological compulsion; or under pressure by others of a kind too subtle to be susceptible of proof i n a law court. Underlying M i l l ' s extreme fear of paternalism there perhaps i s a conception of what a normal human being i s l i k e which now seems not to correspond to the f a c t s . " 5 0 Why i s Hart w i l l i n g to argue that the law ought to prevent physical corruption and yet not i n t e r f e r e with moral corruption? He approves of physical paternalism and yet disapproves of moral paternalism. Why i s there a difference of motive and how do we d i s t i n g u i s h between the two? It appears that the only r a t i o n a l d i s t i n c t i o n i s that physical harm i s f a r easier to prove i n a law court than moral harm. We have a clear conception of what amounts to a p h y s i c a l l y healthy person and can also produce tangible evidence of physical harm. This i s not so with moral harm. But once you approve of the state's paternal motive then disapproval of moral paternalism can only be l o g i c a l l y distinguished on the basis of lack of empirical evidence. Hart does not elaborate upon t h i s explanation and i n fact only refers to i t i n passing with an h i s t o r i c a l reference to "secular harm"^1 One recent reference to t h i s d i s t i n c t i o n i s found i n the Report of the LeDain Commission.-'2 While discussing matters of p r i n c i p l e the 50 Hart ( 1 9 6 3 ) , p. 3 2 . The r i g h t of modern society to embark upon a course of physical paternalism i s c e r t a i n l y not undisputed. For example, see American Motorcycle Association v Davids, 158 N.W.R. ( 2 n d ) , p. 7 2 . 5 1 H a r t ( 1 9 6 3 ) , p. 2 3 . 52 Interim Report of the Commission of Inquiry into the Non-Medical Use of Drugs, Chairman, Gerald LeDain. Report makes a reservation which i s based upon the a b i l i t y to prove the existence of harm. "We simply say that i n p r i n c i p l e , the state cannot be denied the r i g h t to use the criminal law to r e s t r i c t a v a i l a b i l i t y where, i n i t s opinion, the potential f o r harm appears to c a l l f or such a policy." 5 3 It appears that the mere opinion of the state w i l l i t s e l f be acceptable evidence of harm. And the Commission preserves the right of paternal action where i n the opinion of society, there i s a potential f o r harm to the i n d i v i d u a l . "The criminal law should not be used f o r the enforcement of morality without regard to potential f o r harm. In th i s sense we subscribe to what Hart r e f e r s to as the 'moderate t h e s i s ' of Lord Devlin. We do not subscribe to the 'extreme thesis' that i t i s appropriate to use the criminal law to enforce morality, regardless of the potential for harm to the individual or society."^^ The statements of broad p r i n c i p l e made by the LeDain Commission can be summarized as followst (1) Moral b e l i e f s ought only to be enforced where, int e r a l i a , there i s s u f f i c i e n t evidence available of potential or actual harm to individuals or to society. (2) The opinion of society i s prima fa c i e evidence of the existence of actual or potential harm. _ Ibid., Para. 442. 5 4 I b i d . , Para. 444. Hart states that a d e f i n i t e conclusion of Stephen's arguments''-' (and a possible conclusion of Devlin's arguments) i s that "we may make punishable by law actions which are con- demned by society as immoral, even i f they are not harmful."56 Here i s the crux of l o g i c i n the debate—what does Hart mean by "harmful"? He can only mean "cannot be proved to be harmful." Whereas Devlin i s ready to accept the strongly held feelings of the majority as evidence of harm, Hart says that he i s not (though he does, at l e a s t at one stage, take the feelings of the majority into consideration ). ^7 In summary of matters of p r i n c i p l e , the difference between Hart's and Devlin's views seems to come down to a d i f f e r e n t onus of proof. Hart appears to say that morally paternal action i s prima facie not j u s t i f i e d unless society can show that the individual action proposed to be i n t e r - fered with i s harmful to the individual or to others. How conclusively does society have to prove the harm before the prima fa c i e rule against paternal interference i s displaced? Absolutely, beyond reasonable doubt, or on the balance of p r o b a b i l i t i e s ? Hart's onus of proof for showing harm i s a s t r i c t e r onus. Hart purports to demand some physical manifes- t a t i o n of the harm; Devlin i s w i l l i n g to accept i n some cases James Fitzjames Stephen, author of'Liberty, Equality, Fraternity," London, I 8 7 3 . 5 6 H a r t (1963), p. 36. 5 7 H a r t (1963), p. 41. the intangible opinion of common morality. In other words, reason, "when given no more assistance from empirical evidence, ought to c a l l upon feelings to a s s i s t i n the decision-making process." But Hart would say "No—where the empirical evidence available does not lead us to a decision, we should not c a l l upon capricious feelings; instead we ought to base our decision upon the e x i s t i n g presumption that individual freedom should p r e v a i l . " Thus the e x i s t i n g presumption predetermines the decision i n a l l d i f f i c u l t or contentious cases. This means that a d e c i s i o n , L s t i l l based upon feelings and values, i s made e a r l - i e r and l e s s overtly i n our reasoning process i n the form of a value-laden presumption. Hart has d i f f i c u l t i e s i n r a t i o n a l l y sustaining his objections to the use of feelings as evidence of harm to society or to an i n d i v i d u a l . He notes that a breach of moral- i t y as such assumes a public nature when i t i s harmful to others as i t then becomes a nuisance.^ When empirical e v i - dence of harm to the individual i s i n s u f f i c i e n t , there may be s u f f i c i e n t evidence when the mere immorality a f f e c t s others. " . . . I f , i n the case of bigamy, the law intervenes i n order to protect r e l i g i o u s s e n s i b i l i t i e s from outrage by a public act, the bigamist i s punished neither as i r r e l i g i o u s nor as immoral but as a nuisance."59 This further supports the argument — Hart, ( 1 9 6 3 ) , p. 41. 5 9 I b i d . , p. 41. that j u s t i f i c a t i o n for interference with the l i b e r t y of the individual's moral action depends upon the a v a i l a b i l i t y of empirical evidence of harm to the actor or to others. Hart, pursuant to M i l l ' s p r i n c i p l e , 6 0 wishes to l i m i t the ground for interference to those cases where there i s empirical evidence of harm to others. But the example of bigamy being a case where there i s predominantly a nuisance to others makes us wonder how easy i t w i l l be to f i n d elements of nuisance or harm to others i n any action of an i n d i v i d u a l . I f you look fa r enough you can convert every "private" act into a "public" act as every private act at l e a s t a f f e c t s a person's attitudes 61 as a member of society. For example, Graham Hughes, while discussing the f a c t that consent i s not a defence to assault causing grievous bodily harm remarks how the concept of public harm can equally well be useddas a j u s t i f i c a t i o n for t h i s p a r t i c u l a r imposition upon individual freedom. On i t s face, the n o n - a v a i l a b i l i t y of the defence of consent would appear to be predominantly protecting the individual from himself. How- ever "public" harm also exists because (a) there i s the general l o s s to society of the services of the victim when serious bodily harm i s i n f l i c t e d , (b) there i s a consequent possible imposition on the public charge, 6-0 — See footnote number 20. 6 l 7 1 Yale Law Journal, 1961-62, p. 662 at 670. (c) the actor may become psychologically addicted to harming others, (d) society i s offended because i t f e e l s that consent to a serious injury i s wrong. The difference between a private and a public act i s ultimately only a matter of degree. But perhaps we can define a private act as one which predominantly af f e c t s the actor and a public act as one which predominantly a f f e c t s people other than the actor. Following these d e f i n i t i o n s i t i s d i f f i c u l t to agree with Hart that bigamy i s a crime because i t pre- dominantly harms others by being a nuisance to t h e i r f e e l i n g s . John Stuart M i l l attempted to face t h i s problem of every private act containing some element of public e f f e c t and con- cluded that he would prefer open paternalism rather than paternalism hidden behind a f a l s e d i s t i n c t i o n between public and private e f f e c t . "The d i s t i n c t i o n here pointed out between the part of a person's l i f e which concerns only himself, and that which concerns others, many persons w i l l refuse to admit. How ( i t may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person i s an e n t i r e l y i s o l a t e d being; i t i s impossible f o r a person to do anything seriously or permanently hurt- f u l to himself, without mischief reaching at l e a s t to his near connections, and often f a r beyond them. In l i k e manner, when a person disables himself, by conduct purely self-regarding, from the performance of some d e f i n i t e duty incumbent on him to the public, he i s g u i l t y of a s o c i a l offence. No person ought to be punished simply for being drunk; but a s o l d i e r or a policeman should be punished f o r being drunk on duty. Whenever, i n short, there i s a d e f i n i t e damage, or a d e f i n i t e r i s k of damage, either to an in d i v i d u a l or to the public, the case i s taken out of the pro- vince of l i b e r t y and placed i n that of morality or law. But with regard to the merely contingent, or, as i t may be c a l l e d , constructive injury which a person causes to society, by conduct which neither vi o l a t e s any s p e c i f i c duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience i s one which society can afford to bear for the sake of the greater good of human freedom. I f grown persons are to be punished f o r not taking proper care of themselves, I would rather i t were f o r t h e i r own sake, than under pretense of preventing them from impairing t h e i r capacity of render- ing to society benefits which society does not pretend i t has the r i g h t to exact."62 M i l l ' s answer echoes i n the realms of the common law of neg- ligence. But i t s t i l l begs the question for only with cert a i n kinds of moral acts does an in d i v i d u a l owe a s p e c i f i c duty of care to his neighbour. Naturally, society should only in t e r f e r e where the individual has a s p e c i f i c duty of care and breaks i t . To complete the circle--when does an individual owe a moral duty of care to his neighbour? He owes a duty of care to his neighbour i n those cases where his moral action or inaction w i l l predominantly aff e c t others, that i s , where his moral action i s of a public nature. Once again we see how the "solutions" to a c o n f l i c t have the unfortunate habit of re- s t a t i n g the whole problem. John S ^ a r t M i l 1 at p. 136 and p. 1 3 8 . See footnote In summary, despite Hart's i n i t i a l proposal to apply M i l l ' s p r i n c i p l e of l i b e r t y to decisions concerning the enforce- ment of morality, we soon f i n d that M i l l ' s p r i n c i p l e i s stretch- ed beyond recognition. Hart's nuisance test and example of bigamy^ 3 blur the already awkward d i s t i n c t i o n so important f o r his argument between private and public harm. M i l l r e a l i z e d that unless the d i s t i n c t i o n between private and public could be r a t i o n a l l y preserved, his whole p r i n c i p l e was consid- erably weakened as a means of a s s i s t i n g the decision-maker. The essence of M i l l ' s p r i n c i p l e would then become a plea to us "to think i t possible that we may be m i s t a k e n . B e h i n d Hart's pronounced d i s t i n c t i o n between public and private, we f i n d that the r e a l d i s t i n c t i o n l i e s between private concepts of ri g h t and wrong. Hart ( 1 9 6 3 ) , p. 41. Devlin, p. 1 2 1 . VALUE DIFFERENCE BETWEEN HART AND DEVLIN It i s important to remember that the Hart-Devlin debate aimed at providing clear guidelines and p r i n c i p l e s for decision making i n matters concerning the enforcement of morals. What pr i n c i p l e s emerge from the debate to a s s i s t i n answering the question "what should I do?" Unfortunately, the p r i n c i p l e s which emerge are so inconclusive as guidelines that one main lesson i s to beware of r e l y i n g absolutely upon single p r i n c i p l e s . The difference between the views of Hart and Devlin emerges as a difference of value rather than of p r i n c i p l e . In t h i s context a " p r i n c i p l e " i s used i n the sense of a proposition which can be obje c t i v e l y judged as true or f a l s e and which can be applied to a set of facts and a conclusion? be l o g i c a l l y deduced. The essence of a p r i n c i p l e i s that i t purports to be l o g i c a l and s c i e n t i f i c i n the explanation of i t s existence and a p p l i c a t i o n . A "value" i s a proposition, idea or attitude which i s believed i n of i t s e l f quite independently of empirical or l o g i c a l proof. For the purpose of analysis, here i s a single p r i n c i p l e which i s an attempt to amalgamate both sides of the debate. (This by no means "solves" the debate but merely states a common pr i n c i p l e so that we can recapture c l a r i t y and i d e n t i f y the r e a l place of disagreement.) "Society should not i n t e r f e r e with the freedom of action of the individual unless he i s causing harm to himself or to others." The r e a l difference i s that Hart sets out a s t r i c t e r onus of proof to rebut the basic presumption of non-interference.^ Why? Hart protects i n d i v i d - 55 See previous comment on p.24. ual freedom b a s i c a l l y because of a d i f f e r e n t value preference and because of his insistence that t h i s preferred value s h a l l predominate u n t i l displaced by s u f f i c i e n t empirical evidence. Hart c l e a r l y states, "I have also assumed from the beginning that anyone who regards t h i s question as open to discussion necessarily accepts the c r i t i c a l p r i n c i p l e , central to a l l morality, that human misery and the r e s t r i c t i o n of freedom are e v i l s ; f o r that i s why the l e g a l enforcement of morality c a l l s f o r " j u s t i f i c a t i o n " i n the form of the wishes of the common m o r a l i t y . " 6 6 Blackshield also comes to t h i s conclusion when he says that "He (Hart) r e l i e s ultimately on two deep interdependent convictions which are beyond u t i l i t a r i a n or even r a t i o n a l j u s t i f i c a t i o n . One i s that individual l i b e r t y i s an absolute e t h i c a l value; the other i s the p r i n c i p l e of justice that any punitive or other l e g a l enterprise which cuts down t h i s absolute value requires to be justified." 6''' The declared reason for Hart's value preference i s the f a c t that the majority w i l l enforce prejudiced moral opinions upon f,P> the minority. Does Hart value individual freedom more highly than Devlin? Yes--to the extent that he i s more protective of that value. But i t i s obvious that a great part of Devlin's 6 6 ' H a r t , ( 1 9 6 3 ) , p. 82. 6 7 A.R. Blackshield, §. Sydney Law Review, 1 9 6 5 - 6 7 , p. 441 at 4 5 0 . 68 Hart's value presumption receives strong support from Ronald Dworkin—See The New York Review Dec. 1 7 , 1 9 7 0 . A special Supplement "Taking Rights Seriously." Dworkin argues that where the basic r i g h t of i n d i v i d u a l freedom i s involved, the government cannot conduct experiments of deprivation based upon fears and f e e l i n g s ; i t must only act to l i m i t that r i g h t upon empirical evidence that the exercise of the r i g h t i s causing harm. o r i g i n a l essay 7 emphasises the importance of individual freedom. Then where did the d i f f e r e n t value preferences come from? We can look f o r answers i n education, psychology and sociology. In fa c t , at one point, Hart remarks that there i s a persistent philosophy among English judges when dealing with the criminal law but then he says "These are s o c i o l o g i c a l questions of great importance but as they are not the subject of t h i s l e c t u r e I w i l l spare you my amateur speculations on 70 these topics."' But we can speculate i n amateur fashion that Hart as an i n t e l l e c t u a l i s loath to openly admit that such a v i t a l value as ind i v i d u a l freedom should be l e f t to the whims of common morality. It i s apparently an abdication of reason to mere fe e l i n g s . And yet i n the course of his c r i t i c a l analysis, he concludes i n a disguised manner that feelings are and ought to be one consideration when making decisions about i n d i v i d u a l moral freedom.? 1 The difference i n values i s indicated by the undisguised and blatant manner i n which Devlin, a judge well acquainted with the habits of ju r i e s , asserts that common morality ought to be an important guide to the question of whether ce r t a i n moral standards should be enforced. It i s a difference i n style of l i f e as much as a difference i n val u e s — t h e y play the roles of the Progressive I n t e l l e c t u a l versus the Solid Establishment. Devlin's theory i s that of a Devlin, p. 16-20. 7°Hart (1965), p. 36 7 1 H a r t (1963), p. 41. p r a c t i s i n g judge and therefore does not aspire as high as the more i d e a l i s t i c Hart. Devlin's attitude seems to be that human beings, who fear exploitation and desire a secure and e f f i c i e n t government, w i l l t r y to prevent individual freedom predominat- ing over the wishes of the majority. This Hobbesian attitude shows his doubts that individual men are consistently capable of reaching a l e v e l of moral i n t e g r i t y . Devlin casts innuendos about the f a i t h of philosophers i n the moral integ- r i t y of minority groups. He says that " s o c i a l reformers are not as patient as philosophers and we have not waited f o r minority groups to a t t a i n moral integrity"'' 7 2 a n c i that those who over-emphasise individual freedom f a i l to r e a l i z e that "the pimps leading the weak astray f a r outnumber s p i r i t u a l explorers at the head of the strong."'' 3 Devlin's theory purports to be a p r a c t i c a l and workable moral theory for f a l l i b l e human beings. In his words, "For better or worse the law-maker must act according to his l i g h t s and he cannot there- fore accept M i l l ' s doctrine as practicable even i f as an ideal he thought to to be desirable."''^ Devlin's arguments seem to be both dangerous to individual freedom and to present a challenge to the process of i n t e l l e c t u a l decision-making. But Hart's c r i t i c i s m s , upon analysis, only confirm that there are 72 Devlin, p. 1 0 5 . 73 Ibid p. 108. Ibid. , p. 1 2 3 . c e r t a i n l i m i t a t i o n s upon the effectiveness of s c i e n t i f i c r a t i o n - alism and naturalism i n the area of moral decision.? 5 "Hart i s l e f t ( l i k e Devlin) f i n a l l y able to t e l l us only what he believes. He cannot t e l l us why. And t h i s i s only another way of saying that when i t comes to " j u s t i c e " , neither judges nor philosophers quite know what to do."76 As I have concluded that the r e a l crux of the debate i s a difference of values, then I should at l e a s t attempt to i d e n t i f y these values. This i s not an easy task. It i s d i f f i c u l t to define exactly what values Devlin i s supporting as he purportedly argues f o r procedure rather than substance. That i s , i n the f i n a l analysis, he argues that strongly held public opinion, almost regardless of content or substance, ought to be enforced. Presumably public opinion tends to embody t r a d i t i o n a l moral values, clings to security and i s slow to embrace any r a d i c a l change. When there i s c o n f l i c t , t r a d i t i o n and public opinion are to be preferred over s o c i a l changes and i n d i v i d u a l wishes. The difference of values between Hart and Devlin i s only a matter of degree and discovering that difference i s rendered d i f f i c u l t by the s i m i l a r statements made by both of them. For example, i n a l a t e r essay, Devlin says that "the true mark of a free society" i s that "authority 77 should be a grant and l i b e r t y not a p r i v i l e g e . " This state- — See Ekman—Readings i n the Problems of Ethics, p. 7 8 . ? 6 B l a c k s h i e l d at p. 4 5 3 . 77 ment, together with the p r i n c i p l e s q u a l i f y i n g the fe e l i n g s t e s t , are very reminiscent of Hart's whole argument. Hart places a higher prima f a c i e value upon the freedom and r i g h t of self-determination of the in d i v i d u a l and a l e s s e r value on t r a d i t i o n and public opinion. An important difference i n attitude which has been previously mentioned 7 8 i s the d i f f e r e n t b e l i e f concerning the c a p a b i l i t i e s of the average individual reaching a l e v e l of moral uprightness. Some insight into the thought process of Hart can be gained from his book "The Concept of Law".''79 Hart observes that s o c i a l acceptance pre- dominates i n primitive s o c i e t i e s as a source of authority whereas organized authority predominates i n more highly develop- ed s o c i e t i e s . This d i s t i n c t i o n i s expressed i n terms of contrast between primary rules of o b l i g a t i o n and secondary rules of recognition. Hart argues that the rules of s o c i a l acceptance which predominate i n primitive s o c i e t i e s have the Rn defects of uncertainty, unchangeability and i n e f f i c i e n c y . By his analysis, the remedy for these defects i s to have second- ary rules empowering individuals to make authoritative de- terminations or to have secondary rules to determine which of the primary rules are authoritative. Thus both h i s t o r i c a l l y and l o g i c a l l y , Hart argues that norms of behaviour need some- thing more than s o c i a l acceptance before they can be considered _ See previous page 33• 79 H.L.A. Hart, "The Concept of Law", 1961. Ibid., pp. 9 0 - 9 2 . to be law. They must be converted to secondary rules by some authoritative body which i s i t s e l f governed by secondary r u l e s . Transposing these ideas into t h i s debate, i t follows then that i n Hart's opinion the b e l i e f s of the public are not certain, f l e x i b l e or e f f i c i e n t enough to amount to secondary rules and that public opinion alone i s not an authoritative source of law. It i s helpful to look at the debate i n the l i g h t of t r a d i t i o n a l schools of l e g a l and philosophical thought. The arguments of both Hart and Devlin r e f l e c t d i f f e r e n t themes and i t i s easier to i d e n t i f y where each stands h i s t o r i c a l l y than i t i s to state exactly what inner values each one holds. In the writings of Rousseau^ 1 some of the paradoxes of j u r i s - prudence and p o l i t i c a l philosophy become apparent and i t i s within one of these paradoxes that the attitudes taken by Hart and Devlin can be located. Rousseau's theory i s subject to many internal contradictions and he can be quoted to support almost any school of thought. This i s p a r t l y because he attempted to reconcile the natural rights and freedom of man with absolute government by the people. This attempt f a i l e d and as a r e s u l t Rousseau concluded with paradoxical statements such as "whoever s h a l l refuse to obey the general w i l l must be constrained by the whole body of his fellow c i t i z e n s to do sos 81 Rousseau, "The Social Contract", Oxford University Press, Ed. Barker.. which i s no more than to say that i t may be necessary to Op compel a man to be free.' F i r s t l y , one v i t a l issue which emerges from Rousseau's writing i s the t r a d i t i o n a l problem of who ought to be sovereign i n society, a wise d i c t a t o r or public opinion? He attempted to answer t h i s question by developing a concept of the ideal "general w i l l " of the people. However he was never able to f u l l y explain the re l a t i o n s h i p between the mysterious general w i l l and the actual w i l l or public opinion of the people. When faced with the constant problem of the actual w i l l f a i l i n g to r e f l e c t the ideal general w i l l , Rousseau opted to take the r i s k of appointing an interim d i c t a t o r as sovereign. This Wise L e g i s l a t o r would personally decide upon and enforce the general w i l l u n t i l the public understood the general w i l l and embodied i t i n t h e i r opinions. In Rousseau's words, The general w i l l i s always r i g h t , but the judgement guiding i t i s not always well informed. It must be made to see things as they are, sometimes as they ought to be. It must be shown how to a t t a i n the good i t seeks, must be protected against the temptations inherent i n p a r t i c u l a r i n t e r e s t s . . . I n d i v i d - uals see the good which they r e j e c t ; the public desires the good which i t does not see. Both, equally are i n need of guidance... That i s why a l e g i s l a t o r i s a necessity.8 3 This i s also the opinion that Hart has chosen though he does not discuss his dic t a t o r , wise l e g i s l a t o r or wise judge. At £2 Ibid., p. 184. 8 3 I b i d . , p. 204. one point Hart acknowledges that "a u t i l i t a r i a n " w i l l have to apply c r i t i c a l morality i n order to determine what rules of 84 morality ought to be enforced. He gives a hint of how important wise judges are to his theory i n his book "The Concept of Law." There, while r e f e r r i n g to the use of a j u d i c i a l statement as an authoritative guide to the rul e s , Hart makes the statement that "the r e l i a b i l i t y of t h i s must fluctuate both with the s k i l l of the interpreter and the consistency of the judges. " 8 5 Hart lays down the p r i n c i p l e of l i b e r t y as a guideline f o r moral government and t h i s p r i n c i p l e i s i n essence part of the general w i l l or a part of the concept of j u s t i c e . Now as long as Hart can personally stay a l i v e to interpret t h i s p r i n c i p l e , a l l w i l l be well. However, in e v i t a b l y he must face the problem of fin d i n g incorruptible Platonic judges to interpret and enforce c o r r e c t l y t h i s part of the general w i l l . This i s an awesome task f o r i n Rousseau's words "there i s needed a superior i n t e l l i g e n c e which can survey a l l the passions of mankind, though i t s e l f exposed to none: an i n t e l l i g e n c e having no contact with our nature, yet knowing i t to the f u l l . " 8 6 I f Hart o f f e r s us a l e s s e r man then he i s immediately subject to the same c r i t i c i s m s which he directed at Devlin's theory of government by public opinion. These c r i t i c i s m s would be —j. Hart ( 1 9 6 3 ) , p. 2 3 . 8 5 H a r t , "The Concept of Law"$ p. 95. 86 - Rousseau, "The Social Contract", p. 204. such as "Why should the prejudices and bigotry of a f a l l i b l e human being be made sovereign i n society?" and "How do we know that the corruptible individual i n control w i l l govern wisely?" Hart could reply that t h i s wise l e g i s l a t o r w i l l be controlled to a ce r t a i n extent by such rules as M i l l ' s p r i n c i p l e of l i b e r t y . However we have already n o t e d 8 7 how such moral p r i n - c i p l e s need to be continually referred to t h e i r author f o r substantive meaning and involve a very wide and int e r p r e t a t i v e d i s c r e t i o n based ultimately upon personal values. When d i s - i l l u s i o n e d with the search f o r incorruptible l e g a l guardians to interpret his p r i n c i p l e of l i b e r t y , Hart, l i k e Plato i n his o o l a t e r years, would be compelled to enumerate detailed rules to explain the meaning of justice as embodied i n that p r i n c i p l e . 8 9 Devlin has taken the otherppossible path which branches o f f from the mysterious r e l a t i o n s h i p between Rousseau's general w i l l and the actual w i l l of the people. This course i s also a p o t e n t i a l l y dangerous one i n i t s pure form and i s also mystifying i n any modified form. In the realm of moral govern- ment, Devlin, with some h e s i t a n c y , 9 0 i s w i l l i n g to take the r i s k that the actual w i l l of the people w i l l r e f l e c t substan- t i a l l y the ideal general w i l l . He s p e c i f i c a l l y rejects the concept of sovereignty vested i n a Platonic e l i t e as he believes 7See previous p. 14. 8 8 P l a t o , "The Laws" 89 See John Hospers, "An Introduction to Philosophical Analysis", pp. 449-494 for . a discussion of the problems of defining e t h i c a l terms i n non-ethical language. 9°See previous pp. 11-12. that the r i s k of i n j u s t i c e i s greater i n that case than where sovereignty i s vested i n public opinion. "The Platonic ideal i s that the state exists to promote vi r t u e among i t s c i t i z e n s . If that i s i t s function, then whatever power i s sovereign i n the S t a t e — a n autocrat, i f there be one, or i n a democracy the majority—must have the right and duty to declare what standards of morality are to be observed as virtuous and must ascertain them as thinks best. This i s not acceptable to Anglo-American thought. It invests the State with power of determination between good and e v i l , destroys freedom of 91 conscience and i s the paved road to tyranny." It i s inte r e s t - ing to see that both Hart and Devlin are f e a r f u l of the same danger, the p o s s i b i l i t y of tyranny i f either public opinion or an individual are given absolute authority. Devlin considers public opinion to be a l e s s e r e v i l . "Society must be the judge of what i s necessary to i t s own i n t e g r i t y i f only because there i s no other tribunal to which the question can be submitted. This i s the choice that Rousseau would l i k e to have made and i n fact some of his writings give us the confusing impression that he did make public opinion the supreme authority i n society. For example i n "The Social Contract" he said To these three kinds of law a fourth should be added and i t i s the most important of them a l l . It i s to be found not graven on — _ Devlin, p. 89. 9 2 I b i d . , p. 118. p i l l a r s of marble or plates of bronze but i n the hearts of the c i t i z e n s . It i s the true foundation on which the State i s b u i l t , and grows d a i l y i n importance. When other laws become old and feeble i t brings them new l i f e or f i l l s the gaps they leave untenanted. It maintains a People i n the s p i r i t of t h e i r Founder, and a l l unnoticed, substitutes f o r authority the force of habit. I r e f e r to manners, customs and above a l l , opinion. This i s a f i e l d unknown to our p o l i t i c i a n s yet on these things depend the success of a l l the rest.9 3 However Rousseau ultimately sees the necessity for an interim wise l e g i s l a t o r as he observed how often i n j u s t i c e and ignorance went hand-in-hand with the rule of public opinion. Devlin faces the same problem and cannot guarantee that the actual w i l l or public opinion w i l l be uncorrupted. Unlike Rousseau, he has no stated p o l i c y of education or reform other than references to the need fo r r e l i g i o u s f a i t h to provide a base for moral conviction. He states that "No society has yet solved the problem of how to each morality without r e l i g i o n . So the law must base i t s e l f on C h r i s t i a n morals and to the l i m i t of i t s a b i l i t y enforce them..."7 Devlin also exhorts public opinion to be careful and to r e f l e c t upon the importance of i n d i v i d u a l moral freedom before acting to r e s t r i c t t h i s freedom.9-* i n other words, he i s r e l y i n g upon the wisdom of the public and the authority of t h e i r r e l i g i o u s f a i t h to embody justice i n 93 "The Social Contract" p. 2 2 0 . 9 4 Devlin, p. 2 5 . public opinion. And i n any case, i n a democracy, i t i s a l e s s e r e v i l f o r i n j u s t i c e to be i n f l i c t e d by public opinion than i t i s f o r i n j u s t i c e to be i n f l i c t e d by an individual or e l i t e group. Where Devlin's theory suffers from the potential i n - jus t i c e s i n f l i c t e d by the enforcement of public opinion, Hart's theory i s subject to the potential i n j u s t i c e s i n f l i c t e d by the "wise" individual or Platonic e l i t e which interprets the meaning of phrases such as "i n d i v i d u a l freedom" and "harm" to others". I f we interpret Devlin's q u a l i f i c a t i o n s to the feelings t e s t as being substantive, instead of merely p r o c e d u r a l , 9 6 then Devlin also faces the same problem as Hart, that i s f i n d i n g . a wise r u l e r to interpret the substance of the q u a l i f i c a t i o n s . I f the personal values and wisdom of the wise l e g i s l a t o r are subject to appeal or correction, then who i s to make up the appeal court? I f the appeal i s based upon public opinion then we f i n d ourselves discussing the other broad philosophical school of which Devlin i s a representative. In t h i s school, ultimate sovereignty i s invested i n public opinion. It i s immediately apparent how e a s i l y one school of thought refers to the other apparently opposing school i n an attempt to create a more just theory of law and government. However, the search f o r justice means that the theories lose coherence. Thus Hart finds himself unavoidably r e f e r r i n g to public opinion as a See previous discussion on p.l5» source of a u t h o r i t y 9 7 though i n general he declares the poten- t i a l e v i l s of enforcing public opinion. Also Devlin, l i k e Rousseau, could have c a l l e d upon a wise l e g i s l a t o r to l i b e r a t e public opinion by applying a stated concept of morality or natural law. But Devlin i s uneasily reconciled to his own theory that public opinion ought to govern without any pre- condition of j u s t i c e . It i s only when he r e a l i z e s the extremes of i n j u s t i c e l a t e n t i n a s t r i c t i n t e r p r e t a t i o n of his theory that he t r i e s to s l i p across into the reassuring system of authority under a wise l e g i s l a t o r . Hart suffers from the same problem. As Rousseau created ambiguities i n his theory by t r y i n g to reconcile these two possible sovereigns, so both Hart and Devlin create s i m i l a r ambiguities i n t h e i r own theories. Ultimately, authority must rest with a single sovereign and i t appears that ultimately Devlin choses public opinion and Hart chooses a wise l e g i s l a t o r . Hart only refers i n passing to the problem of who would be ultimate sovereign i n his t h e o r y 9 8 99 and would probably t r y to avoid the conclusion reached here. 7 The debate can be placed i n a second broad category of i n t e l l e c t u a l thought which follows on d i r e c t l y from the para- doxical answers given to the question of "Who ought to be sovereign i n society?" This category deals with the t r a d i t i o n a l antinomy between c o l l e c t i v i s m and individualism and asks the 97 Hart ( 1 9 6 3 ) , pp. 41 and 5 1 . Ibid., p. 80. 99 See p.39 concerning the d i f f i c u l t y of reaching any olher conclusion. question "Which i s more important, the individual or the community?" "Whether the i n d i v i d u a l or the community i s the ultimate value i s a problem which was studied i n a l l i t s p r i n c i p a l aspects by Greek philosophers. To the issues as formulated by Plato, A r i s t o t l e and the Stoics thousands of years have added an i n f i n i t e number of i l l u s t r a t i o n s and variations but l i t t l e that i s e s s e n t i a l l y new." 1 0 0 Attempts to combine in d i v i d u a l autonomy with the superior power of the community to create a coherent l e g a l theory have always f a i l e d . For example, the theories of both Locke and Rousseau f a i l to explain how the supreme rights of the majority can be reconciled with the inalienable rights of the i n d i v i d u a l . Ultimately, i n every theory of government, either the individual or the community w i l l p r e v a i l . Duguit's theory of law reaches a c o l l e c t i v i s t conclusion s i m i l a r to the theme of Devlin's essay. He says that a "rule of law exists whenever the mass of individuals composing the group understands and admits that a reaction against the v i o l a t i o n of the r u l e can be s o c i a l l y 1 0 1 organized." Such theories as that of Devlin's are open to the c r i t i c i s m that they may follow the course of Neo-Hegelian philosophy. Certain philosophers w r i t i n g a f t e r Hegel's death g l o r i f i e d the abstract ideal of the state with the r e s u l t that 102 the individual was rendered u t t e r l y i n s i g n i f i c a n t . This 100 W. Friedmann, "Legal Theory", F i f t h E d i t i o n , p. 88. 1 0 1 D u g u i t 2 Columbia L.R. 22 and Friedmann, p. 232. 102 stream of philosophical thought has been i d e n t i f i e d with the extremes of Fascist I t a l y and Nazi Germany i n the twentieth century. Therefore the p o s s i b i l i t i e s of t o t a l i t a r i a n abuse late n t i n Devlin's theory are an inevitable cause f o r c r i t i c i s m from Hart e s p e c i a l l y i n the l i g h t of recent h i s t o r i c a l events. "For there are i n the actual working of democracy many forces l i k e l y to encourage the b e l i e f that the p r i n c i p l e of democratic 103 rule means that the majority are always r i g h t . " J Savigny and E h r l i c h are also representative of one side of t h i s antinomy. Savigny*s "Volksgeist" and Ehrlich*s "Living Law of the People" are ideas which are broadly mirrored by Devlin when he uses such phrases as "a nation's thought" and "accepted public standards. On the other hand Hart r e f l e c t s ideas from the h i s t o r i c a l l y i n d i v i d u a l i s t schools of thought. The Stoics f i r s t developed a l e g a l philosophy expressing the idea of the individual as a reasonable being detached from the community i n which he l i v e s . After the Reformation, the individual emerged as an important entity i n himself rather than being only a part of the la r g e r s o c i a l organism. This idea r e a l l y blossomed with the propaga- t i o n of the "inalienable r i g h t s of man" by Locke. Hart embodies such inalienable r i g h t s i n his theory when he assumes the basic value of individual f r e e d o m . H o b b e s was also an 1 0 3 S e e Hart ( 1 9 6 3 ) , pp. 7 9 - 8 1 . 104 Devlin, pp. 96 and 9 8 . 1°'5See Hart, ( 1 9 6 3 ) . p. 82. i n d i v i d u a l i s t though he coupled t h i s individualism with a theory that l e d to p o l i t i c a l a b s o l u t i s m . 1 0 6 Kant's categor- i c a l imperative was also based on the r a t i o n a l nature of an in d i v i d u a l . But i t i s with the u t i l i t a r i a n s , Jeremy Bentham and John Stuart M i l l , that Hart finds the strongest bond of thought concerning the value of the i n d i v i d u a l . "Bentham's l e g a l philosophy i s an u t i l i t a r i a n individualism. His individualism inspired his numerous and vigorous l e g i s l a t i v e e f f o r t s , a l l directed towards the emancipation of the i n d i v i - dual from the many consti t u t i o n a l r e s t r i c t i o n s and i n i q u i t i e s which impeded, i n England at any rate, the free play of forces that was to give f u l l scope to individual development. Bentham measured the ind i v i d u a l interest i n terms of pain and pleasure and believed that the intere s t of the community consisted of a sum of the interests of a l l the individuals i n that community. Hart also believes that the cumulative r e s u l t of individual freedom w i l l be the good of the community and he adopts "the c r i t i c a l p r i n c i p l e , central to a l l morality, that 1 Oft human misery and the r e s t r i c t i o n of freedom are e v i l s . " John Stuart M i l l , b a s i c a l l y an i n d i v i d u a l i s t , t r i e d to reconcile i n d i v i d u a l and community interest by formulating his p r i n c i p l e of l i b e r t y . 1 0 9 We have seen how inevitable confusion and paradox 1 0 6Hobbes, "Leviathan". 1 07 'Friedmann, "Legal Theory", p. 312. 1 0 8 H a r t ( 1 9 6 3 ) , p. 8 2 . See previous p. 9» 110 arise out of t h i s attempt to reconcile such opposing values. Hart i n h e r i t s these problems when he applies M i l l ' s p r i n c i p l e to the question of enforcement of morals. A t h i r d t r a d i t i o n a l c o n f l i c t can be i d e n t i f i e d i n the Hart-Devlin debate. It can be broadly l a b e l l e d as the c o n f l i c t of Faith and Reason or narrowly l a b e l l e d as a dichotomy between In t u i t i o n and I n t e l l e c t . 1 1 1 "Time and again b e l i e f i n the power of reason has been followed by d i s t r u s t of reason and corresponding f a i t h i n i n s t i n c t . I n t e l l e c t i s pitched against i n t u i t i o n , r e f l e c t i o n against l i f e . In philosophy, the rationalism of the eighteenth and the positivism of the nineteenth century analysing l i f e and thinking i n t e l l e c t u a l l y , according to the p r i n c i p l e of causality, have been followed by a widespread revolu- t i o n . Its battle cry i s i n s t i n c t rather than i n t e l l e c t , the inner meaning of things, rather than t h e i r i n t e l l e c t u a l c l a s s i f i c a t i o n , the t o t a l i t y of l i f e i n i t s meaning and value rather than the analysis of ind i v i d u a l phen- omena according to cause and effect."112 This t r a d i t i o n a l c o n f l i c t whether law i s primarily a matter of i n t e l l e c t or i n t u i t i o n i s present i n the Hart-Devlin debate. Devlin's theory depends upon a h i s t o r i c a l d i s t i n c t i o n between knowledge and b e l i e f and between thinking and postulates. He reje c t s the optimism of nineteenth century thought that every- thing i s capable of being known and understood by the human mind. Hart, i n comparison, has more confidence i n r a t i o n a l i t y and the a b i l i t y of the human mind to make deductive decisions See previous p. 14. I l l Friedmann, "Legal Theory", pp. 83-85. about c r i t i c a l morality. By l o g i c a l a p p l i c a t i o n of M i l l ' s p r i n c i p l e of l i b e r t y , Hart argues that correct decisions can be reached. He goes into a n a l y t i c a l d e f i n i t i o n s of terms such as "harm to others", "paternalism" and "the enforcement of morality" to show that the p r i n c i p l e can be l o g i c a l l y applied to a set of f a c t s . J Hart himself has remarked that one of the popular meanings of "positivism" i s "the contention that a l e g a l system i s a 'closed l o g i c a l system' i n which correct l e g a l decision can be deduced by l o g i c a l means from predetermined l e g a l rules without reference to s o c i a l aims, p o l i c i e s , moral standards." 1 1^ In contrast, Devlin's theory i s empirical to some extent as i t i s based upon the a v a i l - a b i l i t y of evidence of public opinion and yet he wants public 115 opinion to be shaped by an ultimate metaphysical authority. J He could be l a b e l l e d as a natural lawyer because of his hope that moral rules w i l l be derived from b e l i e f i n God. However his p o l i t i c a l theory leads him to reject the idea that moral values acquired by r e l i g i o u s f a i t h ought to be enforced. Due to p r a c t i c a l considerations of l o c a t i n g a sovereign and the f a l l i b i l i t y of ind i v i d u a l human beings, he argues that only those moral b e l i e f s held strongly by public opinion ought to be enforced. Hart on the other hand avoids a metaphysical _ _ See f o r example Hart (1963), pp. 38-43. 1:LS.958 Harvard L.R. Vol. 71, 593 at 601. U5 natural law basis f o r deciding upon moral rules. In his book "The Concept of Law" he asserts that the natural law doctrine "contains c e r t a i n elementary truths of importance f o r the understanding of both morality and law. These we s h a l l endeavour to disentangle from t h e i r metaphysical s e t t i n g and 116 restate here i n simpler terms." It i s not clear whether Hart derives his moral values by non-cognitive or n a t u r a l i s t e t h i c a l methods. 1 1 7 To c l a s s i f y the values of Hart and Devlin into e t h i c a l schools of thought would involve a complete study i n i t s e l f and w i l l not be undertaken i n t h i s paper. However whatever may be the method by which Hart derives moral rules, he c e r t a i n l y r e l i e s upon l o g i c and a r a t i o n a l p r i n c i p l e when t r y i n g to decide which moral rules ought to be enforced. My analysis of the debate leads me to conclude that ultimately a choice between moral values cannot rest upon reason. In the words of Oliver Wendell Holmes, "It i s true that b e l i e f s and wishes have a transcendental basis i n the sense that t h e i r foundation i s a r b i t r a r y . You cannot help entertaining and f e e l i n g them, and there i s an end of i t . " 1 1 8 Also Friedmann, while discussing the theories of Radbruch, comes to the con- clus i o n that "legal r e l a t i v i s m i s therefore concerned with the ultimate meaning of l e g a l systems but does not see i t s task i n Hart, "The Concept of Law", p. 184. 117 'For d i f f e r e n t e i t h i c a l schools of thought see Ekman, "Readings i n the Problems of Ethics", Frankena "Ethics" or Hospers "An Introduction to Philosophical Analysis". 118 Holmes, 32 Harvard L.R., (1918), p. 40. suggesting a choice between opposite values. This choice i s a matter f o r personal decisions; a matter not of science but of conscience. Relativism does not evade p o l i t i c a l decisions, 119 but does not wish to give them a s c i e n t i f i c cloak". y Radbruch himself said "I have no fear of i r r e c o n c i l a b l e antinomies, to decide oneself i s to live!" 1 2° Legal science and philosophy can reveal these antinomies, but cannot indicate a choice between them. This does not amount to an abandonment of the search f o r a hierarchy of values. It just means that the hierarchy of absolute values cannot be demonstrated s c i e n t i f i c a l l y . However i t i s v i t a l l y important that the c o n f l i c t i n g values are stripped to t h e i r respective cores by s c i e n t i f i c i nvestigation i n every case before declaring that the c o n f l i c t i s beyond s c i e n t i f i c settlement. The school of Reason has not t r a d i t i o n a l l y argued that l o g i c and science are useless i n moral matters, rather that they are inconclusive. Therefore i n the next section, I w i l l endeavour to examine whether an analysis of s o c i a l conditions can a s s i s t i n choosing between the values of individual freedom and s o c i a l cohesion. To begin with, can we throw any l i g h t upon the importance of individual freedom i n our modern society? It seems that an understanding of our own values w i l l give us a deeper insight into the process of decision making than w i l l the ___ Friedmann, p. 1 9 2 . 120 Radbruch, 3 Annaire de l ' i n s t i t u t international de philosophic du d r o i t , p. 1 6 2 . exposition of general moral p r i n c i p l e s . On the one hand there are writers such as Herbert Marcuse 1 2 1 saying that today the minds of most people have been so manipulated by modern s o c i a l conditions and communications that majority opinion i s no longer l i k e l y to r e f l e c t truth or j u s t i c e . On the other side of the coin, i t i s pointed out that the climate of moral free- dom has l e d to unwillingness to enforce moral rules upon individuals f o r "to claim i n f a l l i b i l i t y i s to take the path of fanaticism; to impose our own values on others makes us zealots 122 and tyrants." In an age of moral r e l a t i v i s m we often lose our nerve to impose our concept of "the t r u t h " upon o t h e r s — o u r convictions are only another limpid personal point of view. "How can we resolve our differences when the assurance of cognitive or moral certitude i s only an i l l u s i o n fathered by a w i s h ? " 1 2 3 Both sides of the debate continue to be argued p o l i t i c a l l y without apparent resolution. The broader issue of the Hart-Devlin debate, namely, the r e l a t i o n s h i p of individual freedom and s o c i a l control, has often been discussed h i s t o r i c a l l y both i n terms of general doctrine and s p e c i f i c values. John Stuart M i l l said, "the p r a c t i c a l question, where to place the limit--how to make the f i t t i n g adjustment between in d i v i d u a l independence and s o c i a l 121 Herbert Marcuse, "A Critique of Pure Tolerance", (Beacon Book). 122 Joseph Tussman, "Obligation of the Body P o l i t i c " , p. 114. Ibid., p. 115. c o n t r o l — i s a subject on which nearly everything remains to 124 be done." Law and morality have always endeavoured to serve these twin g o a l s — p u b l i c and private i n t e r e s t . H i s t o r i c a l l y , the majority of men have been w i l l i n g to emphasise s o c i a l control above t h e i r desire for freedom as r e l a t i v e s o c i a l peace and s t a b i l i t y are obvious preconditions to individual freedom. We usually desire public security as a means to the l a t e r a c q u i s i t i o n of privacy and freedom. This i s a symptom of our basic Hobbesian fear 1 2-* 0 f e x p l o i t a t i o n by those who are more powerful. And here we f i n d a variable which w i l l d i r e c t l y influence the onus of proving harm. The evidence of harm necessary to rebut the presumption of non-interference with the i n d i v i d u a l w i l l vary according to s o c i a l conditions. In other words, the ideal balance between the values of i n d i v i d u a l freedom and s o c i a l authority s h i f t s i n emphasis depending upon prevalent s o c i a l conditions. Thus i n extreme s o c i a l conditions, in d i v i d u a l freedom i s r e s t r i c t e d where there i s a p o s s i b i l i t y that s o c i a l disaster may r e s u l t from the exercise of that freedom. We are w i l l i n g to accept l e s s empirical evidence of harm. S t r i c t censorship during war i s an obvious example. A recent example i s the action of the Canadian government r e s t r i c t - ing i n d i v i d u a l l i b e r t y by l e g i s l a t i o n i n order to suppress the a c t i v i t i e s of a separatist organization known as the P.L.Q. 124~ M i l l , "On Liberty;• p. 6 8 . 125 Thomas Hobbes, "Leviathan." Pelican Ch. XIII, pp. I 8 3 - I 8 8 . The words of the preamble of the emergency regulations ° are si m i l a r to the s p i r i t of Devlin's argument 1 2? that society has a right to preserve ideas and moral values: Whereas i t continues to be recognized i n Canada that men and i n s t i t u t i o n s remain free only when freedom i s founded upon respect f o r moral and s p i r i t u a l values and the rule of 1aw;... And whereas the Government of Canada desires to ensure that lawful and e f f e c t i v e measures can be taken against those who thus seek to destroy the basis of our democratic govern- mental system, on which the enjoyment of our human righ t s and fundamental freedoms i s founded, and to ensure the continued protect- ion of those rights and freedoms i n Canada. Therefore, His Excellency the Governor General-in-Council, on the recommendation of the Prime Minister, pursuant to the War Measures Act, i s pleased hereby to make the annexed regulations to provide emergency powers fo r the preservation of public order i n Canada. It has been argued that s o c i a l conditions of his genera- t i o n profoundly influenced the emphasis which M i l l himself placed upon in d i v i d u a l l i b e r t y . The e a r l i e r U t i l i t a r i a n s did not regard l i b e r t y as the most important means leading to s o c i a l happiness. The change i n John Stuart M i l l i s i n t e l l i g i b l e i n the l i g h t of the p o l i t i c a l developments of the time. The elder U t i l i t a r i a n s had been warring against p r i v i l e g e and the s i n i s t e r i nterests of the few. They could e a s i l y persuade themselves that s o c i a l d i s t r e s s and p o l i t i c a l abuses were the work of those minorities whom they were 12~fS War Measures Act, Public Order Regulations, 1 9 7 0 , October 1 6 . 127 See discussion on pp. 3-4. attacking. But M i l l wrote at a time when much of t h i s destructive work was done, when i t was becoming apparent that the taking away of unjust p r i v i l e g e s from minorities did not of i t s e l f give s o c i a l happiness. Power had passed from an oligarchy to a democracy and now the U t i l i t a r i a n s saw that the demo- c r a t i c government interfered with l i b e r t y not l e s s but more than formerly."128 Devlin also notes that an emphasis upon one value may be a product of the s o c i a l conditions of one p a r t i c u l a r generation. About M i l l , Devlin says "His admonitions were addressed to a society which was secure and strong and hidebound. Their r e p e t i t i o n today i s to a society much l e s s s o l i d . As a t r a c t f o r the times, what M i l l wrote was superb, but as dogma i t has 1 2 9 l o s t much of i t s appeal." y I agree with Lindsay and Devlin that theories often r e f l e c t the p o l i t i c a l or s o c i a l problems of the age i n which they were written. Then which of Hart's and Devlin's theories i s most applicable to modern society? Are we i n a generation continually threatened with conformity and massive interference with privacy and freedom or are we i n an age where cherished t r a d i t i o n a l values and authority are being undermined by an undue emphasis upon ind i v i d u a l freedom? i o n There are numerous writers, J both modernxand ancient, who analyse s o c i a l i l l s under one or the other or a subtle v a r i a t i o n of these two c l a s s i f i c a t i o n s . The next chapter sets out an 128 A.D. Lindsay, Introduction to John Stuart M i l l , " U t i l i t a r i a n s i m , L i berty and Representative Government, (p.xv), See also Hart (1963), p. 32. 129 ^Devlin, p. 122. 130 For modern examples, see writings of Herbert Marcuse and Joseph Tussman. attempt to choose between the values of Devlin and Hart i n the l i g h t of modern s o c i a l phenomena and the present popular value response to the problem of p o l l u t i o n . I have chosen examples where i t would seem to be obvious that i n d i v i d u a l freedom ought to be subordinated to public opinion. Then I w i l l attempt to extract a guiding p r i n c i p l e from the examples. IRREVERSIBLE DISASTER ARGUMENT Is i t possible today to envisage s o c i a l conditions which would a l t e r Hart's basic value preference for i n d i v i d u a l moral freedom? Can we successfully argue that Hart's value preference f o r individual freedom i s u n r e a l i s t i c and open to question i n our modern-day situation? The Quebec Minister of Justice, Jerome Choquette, i s an example of a person whose emphasis upon one value apparently changed due to prevailing s o c i a l conditions. Taking o f f i c e as a champion of in d i v i d u a l freedom, Choquette i s reported as now saying, "I remain a l i b e r a l , but a r e a l i s t i c l i b e r a l . Democracy has to f i n d appropriate means to defend i t s e l f against organized crime and t e r r o r i s t a c t i v i t y , and i f we're not r e a l i s t i c enough to r e a l i s e that s i t u a t i o n , and i f we want to keep preaching Great P r i n c i p l e s of Freedom of the Individual, then we're missing the point. "^O j - n terms of the present analysis, Choquette would now require l e s s empirical evidence of harm than previously i n order to j u s t i f y an encroach- ment upon the cherished value of i n d i v i d u a l freedom. Let us look by way of analogy at the physical problem of environmental control. In t h i s chapter, I take a stand with a n t i - p o l l u t i o n attitudes purely f o r the purpose of analysis i n an attempt to f i n d a clear p r i n c i p l e i n which individual moral freedom i s subordinated to other values. P o l l u t i o n i s an _ The Province, Newspaper, Vancouver, 2 3 r d January, example of how an attitude of l a i s s e z - f a i r e has changed into a popular demand f o r control of i n d i v i d u a l s . This amounts to an i d e n t i f i a b l e swing i n the values held by the majority. The eco- l o g i c a l disaster of p o l l u t i o n r e s u l t s from the f a i l u r e of society to control disposal of waste materials and individual use of the environment. The r e s u l t i s a threatened upheaval to the whole of human l i f e . The consequences of p o l l u t i o n w i l l take years of dedicated work to r e p a i r . But only when the ecological deterioration reaches disaster proportions are we f i n a l l y prompted to take any action to impose r e s t r a i n t s and to repair the wreckage to nature. The fact of p o l l u t i o n continued before our very eyes for years--but we were'either unaware of the decline or refused to impose r e s t r a i n t s on individual disposal practices because these r e s t r a i n t s would be too d i f f i c u l t . For the sake of expediency, freedom of commerce and unwillingness to impose values, the ecological decline was c l a s s i f i e d as a problem for each in d i v i d u a l to solve and not r e a l l y as a problem j u s t i - f y i n g government intervention. The only d i f f i c u l t y i s that we a l l breathethe same a i r , swim at the same beaches and enjoy the same beauties of nature. There i s l i t t l e empirical evidence to show that i n i t i a l l y ecological decline causes harm to any- thing else than our senses and f e e l i n g s . It i s only l a t e r that, e c o l o g i c a l l y speaking, the lack of r e s t r a i n t of one person w i l l a f f e c t another. It i s being wise a f t e r the event to say now that s u f f i c i e n t foresight coupled with determined r e s t r a i n i n g action would have at l e a s t lessened the disasters of ecological p o l l u t i o n . Some would say that p o l l u t i o n i s a necessary by-product of our progressive i n d u s t r i a l society. However, when the necessary by-product threatens our enjoyment of l i f e , and threatens the very existence of one important human value, then i t i s time to re-arrange our scale of values. Even a person who has ind i v i d u a l freedom at the top of his hierarchy of values would also have aesthetic values somewhere on his scale. Now i f certain aesthetic q u a l i t i e s are threatened, not only with damage, but with extinction or i r r e v e r s i b l e harm, then the hierarchy of values ought to be altered temporarily. Thus the i r r e v e r s i b l e disaster theory c a l l s f o r some r e c o n c i l i a t i o n of c o n f l i c t i n g values, despite personal preferences and despite the lack of empirical evidence to prove that the harm w i l l be i r r e v e r s i b l e . We w i l l discuss l a t e r the problem of who has the authority to c l a s s i f y the f a c t s . J The words spoken by the advocates f o r environmental control have a sur p r i s i n g s i m i l a r i t y to words and phrases embodied i n Devlin's essays and repeat his argument i n a d i f f e r e n t context. "An ethic philosophically, i s a d i f f e r e n - t i a t i o n of s o c i a l from a n t i - s o c i a l conduct. An ethic ecologi- c a l l y , i s a l i m i t a t i o n on freedom of action i n the struggle f o r existence....All ethics so far evolved rest upon a single premise that the individual i s a member of a community of i n t e r - dependent parts. His i n s t i n c t s prompt him to compete fo r his See p.64. place i n the community, but his ethics prompt him to co-operate perhaps i n order that there may be a place to compete f o r . " 1 3 2 The p o s s i b i l i t y of i r r e v e r s i b l e disaster does exist i n our society more than i t did i n the past. "...Given the density and i n t e n s i t y of l i f e i n the modern c i t y one simply cannot leave the ro l e of nature and the organisation of green places to chance or to the private domain." 133 We are warned against r e l y i n g absolutely on basic r i g h t s or p r i n c i p l e s . "...The r i g h t to pollute has become a major philosphical and l e g a l assumption; we tend to require detailed s c i e n t i f i c proof of d i r e c t , personal damage to man as a prerequisite f o r even considering r e s t r i c t i o n of any r i g h t to p o l l u t e . " 1 3 ^ We have seen how Devlin's thesis makes s i m i l a r observations i n the moral realm. For example, " I f we are not e n t i t l e d to c a l l our society 'free' unless we pursue freedom to an extremity that would make society i n t o l e r a b l e f o r most of us, then l e t us stop short of the extreme and be content with some other name. The r e s u l t may not be freedom unalloyed, but there are alloys which strengthen without corrupting." J J Often we hear warnings of ecological "disintegration" unless r e s t r a i n t s are imposed. "We w i l l go down i n history as an elegant technological society struck down by b i o l o g i c a l d i s i n t e g r a t i o n f o r lack of ecological 132 "Challenge f o r Survival 1968—Land, A i r and Water f o r Man i n Megalopolis,"ed. Pierre Dansereau, p. 43. 133 ^Ibid., p. 66. 1 3 4 I b i d . , p. 160. 135 Devlin, p. 123. understanding." J The popular argument continues that as environmental control i s not an exact science, we must err on the side of l i m i t a t i o n of freedom to pollute. This error w i l l mean some unnecessary l i m i t a t i o n of individual freedom u n t i l our under- standing and knowledge increases. Can we argue i n the same manner fo r enforcement of moral standards? That i s to ask "Is the value preference as popularly embodied i n the drive against p o l l u t i o n also applicable to the moral realm?" Hart would immediately answer "no". However t h i s answer i s too blatant and all-encompassing. There are circumstances when even Hart would want to answer "yes" but he then cloaks such cases under the p r i n c i p l e of harm to others. The popular argument continues that because morality i s not an exact science we must accordingly (in times of threatened disaster) err i n favour of the value of s o c i a l cohesion with some unnecessary l i m i t a t i o n s upon individual freedom u n t i l our moral under- standing and knowledge increases. However one discouraging fac t o r i s that we do not seem to be capable of acquiring and then passing on to succeeding generations a l a s t i n g moral under- standing to which we pay more than l i p - s e r v i c e . Each genera- t i o n struggles to acquire i t s own moral convictions by a painful process of t r i a l and error. "Challenge for Survival", p. 1 5 4 . Where a change has the tendency to be disastrous or i r r e v e r s i b l e , i t i s obvious that we ought to take care l e s t that change take place. Therefore, where there i s a danger that a change w i l l be the beginning of the r o t — o r the f i r s t step i n undermining a value which i s basic to the enjoyment of human l i f e , we ought to take steps to prevent that change. Here I am attempting to make a d i s t i n c t i o n between harm and i r r e v e r s i b l e harm or disaster. Harm, i n t h i s context, i s the necessary e v i l which r e s u l t s from a policy of t o l e r a t i o n of c e r t a i n deviations from conduct considered to be good. But t o l e r a t i o n does not require that you tolerate deviations which threaten the l i k e l i h o o d of the very existence of what i s considered to be good. I r r e v e r s i b l e harm i s conduct which may lead to the eventual destruction of a concept of goodness. Naturally t h i s " d e f i n i t i o n " begs the question "Who distinguishes and how do you d i s t i n g u i s h between tolerable harm and i r r e v e r s - i b l e harm or disaster?" The difference w i l l always be a matter of degree. In a disaster s i t u a t i o n , i t i s important to be wise before the e v e n t — e s p e c i a l l y as i n a world which i s an urban v i l l a g e i t w i l l become increasingly d i f f i c u l t to emerge from a disaster without incurable deformity. Dworkin, while discussing obscenity, reasons i n s i m i l a r terms. "...At some point i n the deterioration of community standards the majority w i l l not object to further deterioration, but that i s a mark of the corruption's success, not proof that there has been no corrup- t i o n . It i s p r e c i s e l y that p o s s i b i l i t y which makes i t impera- t i v e that we enforce our standards while we s t i l l have them. This i s an example—it i s not the only o n e — o f our wishing the 137 law to protect us from ourselves." J ' Although I agree with t h i s general p r i n c i p l e concerning the prevention of i r r e v e r s - i b l e harm, i t s use i n practice w i l l cause inevitable contro- versy. Each i n d i v i d u a l , group or majority w i l l decide upon the ap p l i c a t i o n of the p r i n c i p l e according to personal values and b e l i e f s . In the area of morals, Hart says that society w i l l continue to exist i f certain core morality changes; people w i l l go on l i v i n g . However, the quality of t h e i r l i f e - s t y l e may be i r r e v e r s i b l y lowered by the change. We understand the man who says "I am prepared to take the dangerous step of making a decision to enforce t h i s moral rule thereby plugging one hole i n the leaky dam of morality." The concept of preser- vation by enforcement of that which i s valuable i s r e f l e c t e d i n the Interim Report of the LeDain Commission. 1 3 8 "The r i g h t of society to protect i t s e l f from c e r t a i n kinds of harm. Without entering into the d i s t i n c t i o n between law and morality, we also subscribe to the general proposition that society has a right to use the criminal law to protect i t s e l f from harm which t r u l y threatens i t s existence as a p o l i t i c a l l y , s o c i a l l y and econom- i c a l l y viable order f o r sustaining a creative and democratic process of human development and s e l f - r e a l i z a t i o n . " 1 3 7Dworkin, 75 Yale L.J. (1966) 986 at p. 1004. Para. 443. It i s d i f f i c u l t to determine when a tolerated immorality w i l l begin the rot or break the back of a prevalent moral value. And although tolerance of individual deviation i s i t s e l f a moral v i r t u e , i f tolerance i n s p e c i f i c instances may lead to i r r e v e r s i b l e l o s s of important moral values, then we should not take the r i s k . Be intolerant now and thereby prevent at l e a s t one possible means of destruction of those important values which we believe to be essential to human f u l f i l l m e n t . Devlin did not o r i g i n a l l y ( i n the Maccabaean Lecture) argue the case for enforcement of common morality i n the express terms of avoiding some i r r e v e r s i b l e disaster. However t h i s i s the implication of his basic argument that society has the ri g h t to preserve i t s e l f and prevent undermining of core values which are the strength of s o c i e t y . 1 ^ This i s an important l i n e of reasoning which should be argued when considering the question whether to enforce a ce r t a i n moral r u l e . However i t i s one argument amongst others and, as we s h a l l see, does not give decisive weight to either side of the debate. We began by questioning the emphasis which Hart places upon individual freedom i n the context of modern society. Has Devlin's o r i g i n a l argument, interpreted i n terms of i r r e v e r s i b l e disaster, cast doubts on Hart's value preference? The answer i s "No"—for there are several unanswerable objections to the Devi i n , p. 10. i r r e v e r s i b l e disaster j u s t i f i c a t i o n f o r the enforcement of morality. (1) Who i s to be the Platonic judge of which moral change i s the beginning of the rot? We cannot prevent a l l moral change and neither do we want t o — b u t who i s to decide the correctness of the proposed enforcement? (2) It can be argued that i t i s so important that i n d i v i d u a l freedom remain unrestricted that we must run the r i s k of i r r e v e r s i b l e disaster. "Rational morality must s t i l l i n s i s t on i n d i v i d u a l moral l i b e r t y and even i f non-enforcement of morals i s a threat to s o c i a l s u r v i v a l , morality (or demo- cracy) demands that we take the r i s k . " 1 ^ 0 (3) What amounts to acceptable evidence that some i r r e - v e r s i b l e disaster w i l l probably occur? This restates the problem of whether the feelings of the common morality are acceptable evidence i n most cases as the essence of preventing disaster i s to act quickly at the f i r s t warning of deterioration. But immediately the th e o r e t i c a l l i m i t a t i o n s upon premature action must be added—there must be a c l e a r and present danger and we ought to r e l a t e the gravity of the e v i l threatened to the l i k e l i h o o d of reaching that e v i l . (4) Why should the disaster r a t i o n a l i s a t i o n be applicable i n only our modern society? History has shown that mankind has f4~0 Blackshield indicates a s i m i l a r value-preference to Hart. See p. 452. survived through cycles of both good and bad moral change, and a disastrous moral change has usually been followed by r e v i v a l or reformation. But t h i s i s a kind of moral fatalism which places us at the whim of unpredictable moral fashion. It seems obvious that we should at l e a s t attempt to preserve fundamental moral values. However someone could e a s i l y l a b e l the advocate of the i r r e v e r s i b l e disaster p r i n c i p l e as a prophet of gloom and doom and point out the h i s t o r i c fact that some sense of disaster has always hovered over society. Even Plato said "...When I considered a l l t h i s , the more clos e l y I studied the p o l i t i c i a n s and the laws and customs of the day, and the older I grew, the most d i f f i c u l t i t seemed to me to govern r i g h t l y . Nothing could be done without trustworthy friends and supporters; and these were not easy to come by i n an age which had abandoned i t s t r a d i t i o n a l moral code but found i t impossibly d i f f i c u l t to create a new one. At the same time law and morality were deteriorating at an alarming r a t e . . . . n l 4 l (5) M i l l argues that " i f the claims of i n d i v i d u a l i t y are ever to be asserted, the time i s now, while much i s s t i l l wanting to complete the enforced a s s i m i l a t i o n . It i s only i n the e a r l i e r stages that any stand can be successfully made against the encroachment.... If resistance waits t i l l l i f e i s reduced nearly to one uniform type, a l l deviations from that type w i l l come to be considered impious, immoral, even 142 • monstrous and contary to nature." Here M i l l i s using a s i m i l a r i r r e v e r s i b l e disaster argument to j u s t i f y preserva- t i o n of i n d i v i d u a l i t y before he has empirical evidence that i n d i v i d u a l i t y w i l l probably be destroyed. Early over-caution i s more desirable than repenting at l e i s u r e when such an important value as i n d i v i d u a l i t y i s involved. Thus we f i n d that t h i s attempt to r a t i o n a l l y j u s t i f y Devlin's value pref- erence can backfire. The same i r r e v e r s i b l e disaster theory, implied i n Devlin's essay, i s here used to support the opposite side of the the debate. When a breach of a moral p r i n c i p l e w i l l eventually lead to more than harm, such as disaster or i r r e - v e r s i b l e harm, then j u s t i f i c a t i o n exists for preserving and enforcing one moral value i n preference to other values. This p r i n c i p l e ought to be applied, even though there i s l i t t l e empirical evidence that the disaster or i r r e v e r s i b l e harm w i l l a c t u a l l y eventuate; the standard or proving harm has been lowered. "Better to cut out one possibly faulty eye than to r i s k the i r r e v e r s i b l e f i r e s of h e l l " i s a p r i n c i p l e which can be equally well applied by both Hart and Devlin. Thus although both Hart and Devlin would agree with the i r r e v e r s i b l e disaster p r i n c i p l e as I have set i t out i n t h i s chapter, each has his own idea of when i t ought to be applied. A l l we can say i s that Devlin, being l e s s tolerant toward individual deviation, John Stuart M i l l , p. 1 0 5 . would invoke the p r i n c i p l e more often than Hart. This i s analogous to saying that Devlin's theory involves enforcing moral rules more often than Hart's theory. Thus although I agree with the p r i n c i p l e , i t does not ultimately help to choose between Hart and Devlin. The i r r e v e r s i b l e disaster argument rai s e s the debate to another l e v e l but ultimately asks the same question, "When should morality be enforced by means of the law?" At the beginning of t h i s chapter, I asked whether i t i s possible today to envisage s o c i a l conditions which would a l t e r Hart's basic value preference f o r individual moral freedom? I have chosen a category of extreme situations under the'.heading of " i r r e v e r s i b l e disaster" and t r i e d to formulate a p r i n c i p l e that would enable a clear non-value choice between values. This attempt has proved to be unsuccessful and the p r i n c i p l e can only be applied by using the same values as i t i s meant to d i s t i n g u i s h . A s i m i l a r assault can be made upon Devlin's value- preference i n the l i g h t of modern s o c i a l conditions. The assault would take the following form. As modern society i s so diverse and fragmented i n i t s b e l i e f s and attitudes, a theory which depends upon the existence of some common b e l i e f s and morality w i l l have d i f f i c u l t y f i n d i n g such b e l i e f s . This w i l l be e s p e c i a l l y true i f Devlin's statement that no society has yet been able to teach morals without r e l i g i o n 1 ^ 3 i s correct, f o r modern society can c e r t a i n l y be l a b e l l e d as secular rather than r e l i g i o u s . It could then be argued that Devlin's theory should not be followed u n t i l there i s a deep r e l i g i o u s r e v i v a l i n our p l u r a l i s t i c society. I f Devlin was once w i l l i n g to take the r i s k that public opinion would embody justice on a majority of occasions, he ought not to take that r i s k now as public opinion has no unity or d i r e c t i o n . This argument i s si m i l a r to the reasoning of Herbert M a r c u s e 1 ^ who says that the public i s no longer capable of determining i t s own good. Therefore Marcuse, reminiscent of Rousseau, advocates that an interim Platonic e l i t e nought to be empowered to determine and enforce the public good u n t i l the public i s educated s u f f i c i e n t - l y to resume a government organized on democratic p r i n c i p l e s . Here the attempt to d i s c r e d i t Devlin's value-preference i n modern society breaks down fo r at l e a s t two reasons. F i r s t l y , Devlin would disagree with the analysis that a p l u r a l i s t i c society no longer has some common bonds of thought which public opinion w i l l want to enforce. This i s the same problem as existed with the i r r e v e r s i b l e disaster argument, namely that there i s no authoritative body to c l a s s i f y the fa c t s . Secondly, Devlin c l e a r l y f e e l s that Marcuse's solution of empowering a Platonic e l i t e contains more r i s k s of i n j u s t i c e See f o r example Herbert Marcuse "A Critique of Pure Tolerance". See previous p. 64. than government i n the area of moral enforcement by a diverse and wavering public opinion. Thus the a p p l i c a t i o n of Devlin's and Hart's theories to opposite and extreme interpretations of modern s o c i a l conditions does not reduce either theory to absurdity. CONCLUSION Neither party to the debate finds a single p r i n c i p l e which w i l l a s s i s t the decision-maker without eventually r e l y i n g upon underlying private values and attitudes. The i r r e v e r s i b l e disaster theory, although giving some insight into Devlin's position, can equally well he used to support Hart's arguments. Likewise, the analysis of modern p l u r a l i s t i c society does not e a s i l y produce a p r i n c i p l e which can seriously question Devlin's value-preference. Once again, the arguments are r a t i o n a l i z a t i o n s f o r values already chosen. The how does one f i n d a meaningful p r i n c i p l e to determine which of two values should prevail? Friedmann answers i n the following manner. "The agony of the decision, the conscious choice between values w h i c h — l i k e the claim to security from treason of the organized community and the claim to individual freedom of conscience and opinion—have equal i n t r i n s i c value, but have to be adjusted i n a concrete s i t u a t i o n — i s the noblest heritage of homo sapiens. Legal philosophy can aid i n the choice: i t cannot 146 and should not eliminate i t . " I believe that at a c e r t a i n stage, analysis i s no longer h e l p f u l . The c o n f l i c t i n g values can only be stated separately and a choice made by i n t u i t i o n . I n t u i t i o n i t s e l f i s unavoidably attached to psychology and theology. Then i t comes down to a matter of p o l i t i c a l p h i l - Friedmann, p. 36k. osophy as to whose i n t u i t i o n ought to be given abolute au t h o r i t y . 1 ^ ? Hospers, at the conclusion of an analysis of modern e t h i c a l theories asks an i d e n t i c a l question, "How then are we ever to s e t t l e these disagreements about e t h i c a l f a c t s , which may p e r s i s t even aft e r there i s no longer any disagree- 1 48 ment about non-ethical facts?" At t h i s point he r e p l i e s that ultimately disagreements about -.ethical facts must be s e t t l e d by i n t u i t i o n though there are several important matters which must be investigated before we reach that conclusion. However, having dealt with such factors as "our personal desires, our human preferences i n our own behalf, wishful thinking, 149 clever r a t i o n a l i s a t i o n s and the l i k e " , we are sometimes l e f t with an unsolved c o n f l i c t of values. Then, only by i n t u i t i o n can we either make a decision or select an e t h i c a l or philosophical school of thought. To Hart and Devlin, who place a strong emphasis upon either the value of individual freedom or s o c i a l control, M i l l ' s words taken from a d i f f e r e n t 150 context seem to be very applicable. J "Rarely when two views are opposed does one contain a l l the truth and the other complete f a l s i t y . Far more common i s i t to f i n d each view containing parts of the t r u t h . . . i n the human mind, one-sidedness See previous discussion pages 37-43. 148 Hospers, "An Introduction to Philosophical Analysis", p. 492. 149 Ibid., p. 493. John Stuart M i l l , p. 105. has always been the rule and many sidedness the exception. Hence, even i n revolutions of opinion, one part of the truth usually sets while the other r i s e s . Even progress, which ought to superadd, for the most part only substitutes, one p a r t i a l and incomplete truth f o r another; improvement consisting c h i e f l y i n t h i s , that the new fragment of truth i s more wanted, more adapted to the needs of the time than that which i t d i s - 151 places." The paradoxical values, s o c i a l control and individual freedom, cannot either exist meaningfully alone. Today, the decision-maker s t i l l asks "What should I do to reconcile these two values?" We w i l l , as human beings desiring p r e d i c t a b i l i t y i n our a f f a i r s , continue to search f o r rules and p r i n c i p l e s to a s s i s t the decision-maker. We do not want to leave him unassisted or unrestricted and yet there i s great d i f f i c u l t y i n providing him with guidelines other than our own personal values. It i s not an abdication of reason to admit t h i s and then to endeavour to shape our personal values as they ought to be. M i l l , "On L i b e r t y " , p. 1 0 5 . Commission on Homosexual Offences and P r o s t i t u t i o n , Cmd. No. 247, Wolfenden Report (Authorised Am. Ed. 1963). Patrick Devlin - The Enforcement of Morals (London, Oxford University Press, 1965). H.L.A. Hart - Law Liberty and Morality 1963, Vintage Book. H.L.A. Hart - The Morality of the Criminal Law 1965. H.L.A. Hart - The Concept of Law, Oxford University Press. Dworkin - Lord Devlin and the Enforcement of Morals, 75 Yale L.J. 986 (1966). Graham Hughes - Morals and Criminal Law, 71 Yale L.J. 662 (1962). Rostow - The Enforcement of Morals i 960 Cambridge L.J. 174. H.L.A. Hart - 35 University of Chicago 1 H.L.A. Hart - 71 Harvard Law Review, (1958). S. Wexler - Vol. 43, Dec. 1968 New York University Law Review A. Blackshield - 1967 Sydney Law Review Vol. 5, p. 441. L. F u l l e r - The Morality of Law. Thomas Hobbes - Leviathan, Pelican. Plato - The Republic* Penguin. Dennis Lloyd - The Idea of Law, Pelican. J.S. M i l l - On Libert y , Everyman's Library. J. Bentham and J.S. M i l l - The U t i l i t a r i a n s - Dolphin Book. Wolff, Moore, Marcuse - A Critique of Pure Tolerance. Social Contract of Rousseau, Locke and Hume (ed. Baker). William K. Frankena - Ethics. Challenge f o r Survival 1968 - Land, A i r and Water for Man i n Megalopolis - ed. Pierre Dansereau. Ronald Dworkin - Taking Rights Seriously. The New York Review, December 1 7 , 1 9 7 0 . W. Friedmann - Legal Theory, F i f t h Ed. Rosalind Ekman - Readings i n the Problems of Ethics John Hospers - An Introduction to Philosophical Analysis.;

Cite

Citation Scheme:

    

Usage Statistics

Country Views Downloads
Canada 55 2
United Kingdom 50 7
United States 48 1
India 37 9
Hong Kong 8 0
Unknown 7 1
France 6 0
Germany 6 5
Norway 6 2
Guyana 5 0
Maldives 4 0
Cyprus 4 0
Spain 3 0
City Views Downloads
Unknown 102 36
Ottawa 24 0
Mountain View 12 0
Portsmouth 9 0
Toronto 7 2
Gandhinagar 6 0
Central District 6 0
London 6 0
Kanata 5 0
Georgetown 5 0
Preston 4 0
New Delhi 4 0
Burnaby 4 0

{[{ mDataHeader[type] }]} {[{ month[type] }]} {[{ tData[type] }]}

Share

Share to:

Comment

Related Items