Hart versus Devlin

Picture a housing society. One resident does something inside his own flat that most neighbours find distasteful, though it causes no noise, leak or danger to anyone. Can the committee fine him? One view says no: the committee exists to stop residents harming each other, and what he does behind his own door is his business. The other says the society is more than a set of flats; it is a shared way of living, and if members may flout its standards freely, the community will fall apart. The first is Hart, following Mill; the second is Devlin. This note sets out the debate; the wider relation of law and morality is in Notes 20 and 50.

Figure: The reach of the criminal law along the range of human conduct: Hart draws the line at harm to others, Devlin extends it to private immorality that threatens society's shared morality

1. The Setting: Wolfenden, and an Older Round

The Committee on Homosexual Offences and Prostitution, chaired by Sir John Wolfenden, reported in 1957. It recommended that homosexual acts in private between consenting adults should no longer be criminal; Parliament enacted this for England and Wales in the Sexual Offences Act 1967. On prostitution, which was itself not a crime, the Report recommended stricter penalties for street soliciting to clear the streets, which became the Street Offences Act 1959. Its guiding idea was that there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.

The debate was a replay. John Stuart Mill, in On Liberty (1859), had stated the harm principle; James Fitzjames Stephen, in Liberty, Equality, Fraternity (1873), replied that the law may properly punish gross vice for its own sake. Devlin stands in Stephen's line, Hart in Mill's, though Hart modified Mill.

2. Devlin's Argument

Lord Devlin, a judge, delivered the Maccabaean Lecture in Jurisprudence to the British Academy in 1959, later collected in The Enforcement of Morals (1965). A society, he said, is a community of ideas, including ideas about how its members should live. A recognised morality is as necessary to society as a recognised government. Therefore society may use the law to preserve its morality just as it uses the law to preserve anything else essential to its existence; the suppression of vice is as much the law's business as the suppression of subversive activities, and Devlin drew the parallel with treason. Morality is a seamless web: to tolerate deviation in one part endangers the whole. There is therefore no area of private morality beyond the law in principle.

How do we know what the shared morality condemns? Devlin's test is the man in the jury box, the reasonable, right-minded person, not a philosopher. Where conduct provokes in him real feelings of intolerance, indignation and disgust, beyond mere dislike, that is a sign that the conduct threatens society's moral fabric. Devlin then set limits on the power: there should be toleration of the maximum individual freedom consistent with the integrity of society; the law should be slow to act, because the limits of tolerance shift; privacy should be respected as far as possible; and the law is concerned with a minimum, not a maximum, standard of behaviour.

3. Hart's Reply

Hart answered first in a broadcast talk, 'Immorality and Treason', printed in The Listener (1959), and fully in Law, Liberty and Morality (1963). He began with a distinction between positive morality, the morality actually accepted by a given social group, and critical morality, the general moral principles used to criticise actual institutions, positive morality included. The question whether the enforcement of positive morality is justified is itself a question of critical morality.

Hart then split Devlin's claim into two. The moderate thesis says that a shared morality is the cement of society, so its enforcement is justified to prevent disintegration. Hart replied that this is an empirical claim for which Devlin offered no evidence, and that it confuses a change in a society's morality with the destruction of society: a society whose views on sexual conduct change is the same society, altered, not a disintegrated one. The extreme thesis says that enforcing morality is valuable in itself, whether or not society is endangered. Hart found this indefensible: it punishes where there is no victim, and ignores the real misery that punishment inflicts on those punished for conduct that harms no one. The feelings of the man in the jury box are no guide either, since intolerance and disgust have been directed at many practices later accepted as harmless.

Hart did not adopt Mill wholesale. He drew a line between public decency and private immorality: the law may punish conduct that offends people in public, as with public indecency, without enforcing morality as such. He explained the crime of bigamy on this basis, as a public act offensive to religious feelings, rather than as the enforcement of monogamy. And he accepted paternalism, protecting people from themselves, which Mill rejected. The rule that consent is no defence to serious bodily harm, stated in R v Donovan (1934), is for Hart paternalism, not legal moralism; Devlin had cited it as proof that the law enforces morals.

4. Dworkin's Contribution

Ronald Dworkin, in 'Lord Devlin and the Enforcement of Morals' (1966), attacked the man in the jury box from another angle. A genuine moral position must rest on reasons, not on prejudice, personal aversion, rationalisation or the mere parroting of others. The disgust Devlin relied on may be exactly the kind of feeling that is not a moral position at all, and a legislator must test the community's consensus for genuine moral conviction before enforcing it.

5. The English Cases

6. The Two Compared

7. The Indian Perspective

Indian courts have repeatedly faced Devlin's question, and the modern answer is constitutional morality, which resembles Hart's critical morality. In Naz Foundation v Govt of NCT of Delhi (Delhi High Court, 2009), Section 377 IPC was read down so far as it criminalised consensual adult acts in private. The Supreme Court reversed this in Suresh Kumar Koushal v Naz Foundation (2013), deferring to Parliament and to prevailing social attitudes.

In Indian Young Lawyers Association v State of Kerala (2018, the Sabarimala case), the majority again preferred constitutional morality to custom. The law of obscenity (formerly Section 292 IPC) shows the same movement: Ranjit D. Udeshi v State of Maharashtra (1965) applied the strict Victorian Hicklin test to Lady Chatterley's Lover, while Aveek Sarkar v State of West Bengal (2014) replaced it with a contemporary community standards test.

8. Evaluation

Most modern writers side with Hart on the central issue. Devlin's disintegration thesis was never supported by evidence, and his test of intolerance, indignation and disgust gives the criminal law to majority feeling, which has often been prejudice directed at minorities. Devlin nevertheless raised a real question that Hart's answer does not fully settle: a society does share some moral standards, and much of the criminal law (on cruelty to animals, for example, or on the sale of human organs) is hard to explain purely in terms of harm to others.

Hart's position has its own difficulties. The idea of harm is contested and can be stretched until it covers almost anything. His acceptance of paternalism and of the protection of public decency brings back some of the enforcement of standards he rejected, and critics ask where paternalism ends and moralism begins, as R v Brown shows. The Indian answer, constitutional morality, borrows from both: like Devlin it accepts that the law rests on shared values, but like Hart it locates those values in a critical standard, the Constitution's commitment to dignity, liberty and equality, not in popular disgust.

9. Frequently Asked Questions

Q. What did the Wolfenden Report recommend?
A. That homosexual acts in private between consenting adults should cease to be criminal (enacted in 1967), and, on prostitution, which was not itself a crime, that street soliciting should be punished more strictly (Street Offences Act 1959). Its principle was that some private morality is not the law's business.

Q. What is the difference between Devlin's moderate and extreme theses?
A. The moderate thesis says that a shared morality holds society together, so enforcing it prevents disintegration. The extreme thesis says enforcing morality is valuable in itself. Hart called the first unproven and the second indefensible.

Q. Did Hart reject every limit on liberty beyond harm to others?
A. No. He accepted paternalism, such as the rule that consent is no defence to serious bodily harm (R v Donovan, 1934), and the protection of public decency, as with bigamy. What he rejected was punishing private conduct merely because it is thought immoral.

Q. What is the difference between positive and critical morality?
A. Positive morality is the morality actually accepted and shared by a given social group. Critical morality is the set of general moral principles used to criticise actual social institutions, positive morality included. Hart argued that whether the law should enforce positive morality is itself a question of critical morality.

See also: Note 20 (law and morality), Note 50 (law versus morality), Note 48 (liberty and equality), Note 65 (Hart versus Fuller), Note 19 (Dworkin).