The Enforcement of Morality backfires on Christians
In my previous post I mentioned a book that has recently been republished by Liberty Fund, which is a direct assault on basic libertarian principles. While Liberty Fund has not been openly libertarian it was fundamentally classically liberal in nature and never, to my memory at least, engaged in the publication of books which were assaults on libertarian values. Their publication of The Enforcement of Morality by Lord Patrick Devlin is just that.
While they talk about the importance of this book in the debate on same-sex marriage it should be clear that Devlin was defending the criminalization of homosexuality. This means the arrest, prosecution and punishment of individuals who have violated the rights of no one. Devlin argued it, not on the basis that individual rights were assaulted but on the principle that some sort of "societal right" is violated. Packed into that is the assumption that "society" as a collective body has rights that exceed those of any individual member of that body. While my individual rights are not violated by someone's private sexual athletics, my rights as part of the collective called "society" is violated in the same manner as my individual rights would be if someone punched me in the nose.
What nonsense! If you punch me in the nose I feel direct pain. It may bleed. You may break it. You must do something to me for this to happen. But if you have a sexual liaison in the privacy of your own home, one I know nothing about, and was no party to, exactly how is it that my collective "social" right was violated? Hayek argued that the term "social justice" is an absurdity. He said: "'Social justice' is necessarily empty and meaningless." But so too is Devlin's concept of social rights, and for similar reasons.
Devlin, who had joined a Catholic order as a young man but left it, argued that widely held opinions, no matter how they are derived, are shared values that hold a society together. Any private activity that violates those values threatens the social fabric, in Devlin's mind. So even bigoted, and prejudicial views, if widely held would seem to warrant special legal protection. In Devlin's mind, because enough people in 1950s England thought homosexuals were disgusting, to not inflict legal punishment on people for being homosexual, is somehow an assault on all the people who are disgusted with the activity. I would wonder how Lord Devlin would respond if the prejudice that was so widespread was against Catholics like himself. Certainly, in the period of colonial America this was precisely the case, right down to having laws forbidding Catholics to reside in certain colonies. What I tend to find, however, is that people who hold Devlin's view always manage to exclude themselves from such categories.
It is important to cover what inspired Devlin to launch his defense of collectivist rights. In 1950s England there was a rash of gay men who were being prosecuted for being homosexual. Of course, this went back much further. One remembers that Oscar Wilde was charged with being gay in 1895 and sentenced to two years in prison at "hard labor." The sentence was harsh and destroyed Wilde's health. He collapsed and burst an ear drum and spent two months in infirmary as a result. After his release in 1897 he was in extremely poor health and eventually died as a result of it in 1900, at the age of 46. He was bankrupted and lost all contact with his sons, who he loved dearly, and who loved and missed him. Consider that this is what Devlin was defending!
The persecutions of gays in the 1950s revealed precisely how the law encouraged blackmail and extortion. This sort of victimization of gays by the criminal classes was portrayed well in the 1961 Dirk Bogarde film Victim. I have a clip here if you wish to see it.
The common moral thread that Devlin was defending actually made criminality possible. It encouraged the blackmailer and the extortionist. It lead to suicides and destroyed lives. This is Devlin's moral order.
As a result of these incidents the British government created a committee to study the matter of homosexuality and prostitution and what the law should say about these matters. Headed by Lord Wolfenden the committee of socially acceptable individuals held hearings, including speaking to individuals who had been victimized because of the laws in question. The committee issued its report arguing a classically liberal position: "It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour. Even after this Report it took the British government another decade to abolish these laws, and in Scotland they remained in place until 1980. It should be noted that Wolfenden was himself quite anti-gay and that matters were not helped when his son, Jeremy, told him that he was gay himself.
Devlin believed that all morality must come from religion. He wrote that "Morals and religion are inextricably joined—the moral standards general accepted in Western civilization being those belonging to Christianity." He wrote that no moral code "can claim any validity except by virtue of the religion on which it is based." In other words, there is no rational code of morality, merely religious preferences all of which are valid merely because the proponents of those codes extol them in the name of an imaginary being.
Even crimes, Devlin said, are not offenses against the individual, but only crimes because they are offenses against the collective concept called society. "Now, if the law existed for the protection of the individual, there would be no reason why he should avail himself of it if he did not want it. The reason why a man may not consent to the commission of an offense against himself beforehand or forgive it afterwards is because it is an offence against society. It is not that society is physically injured; that would be impossible. Nor need any individual be shocked, corrupted, or exploited; everything may be done in private." What makes a crime a crime, says Devlin is "that there are certain standards of behavior or moral principles which society requires to be observed; and the breach of them is an offense not merely against the person who is injured but against society as a whole."
What it comes down to, for Devlin, is a crime is a crime because society doesn't like it. And what society doesn't like is the collective presumptions of people, based on religious precepts, without reason or logic, or any underlying principle. Morals are morals for no other reason than religious people say they are. Criminal law enforces moral principles, not because any right is violated, but because religious people want it that way. There have always been classical liberals who doubt the moral consensus of a society but that is irrelevant to the likes of Devlin. These dissenting opinions should be shunted aside in favor of the collective morality, as expressed by the common man of the era.
But look how pathetic that argument is. Consider the England of today, which is vastly different from that of Devlin's times. Today the moral consensus is not Christian. And there is a widespread social acceptance that discriminatory practices are wrong. By Devlin's own logic the Christian who discriminates against the homosexual today should be restricted by the law, and punished if he indulges is own personal judgment. Individual rights, Devlin argued, don't matter. Only the social consensus. Today that consensus would put the likes of Devlin in the docket for living up to their religious moral principles.
And who would defend Devlin from such prosecution?—the very classical liberals whom he castigates and attempts to refute in his book. The classical liberal or libertarian would argue that the Devlinite Christian, like the homosexual of 1950s England, has individual rights and that society as such does not. The liberal would argue, as John Stuart Mill did, that the function of government is to protect people from one another and otherwise leave them free to control their own lives. Proper liberalism would defend both homosexuals in a homophobic culture and Christians in a secular one.
Oddly it is Devlin's legal theories that dominate today in England; not those of the Wolfenden Report. Devlin basically won the legal battle. The law in England today does not protect individual rights, it protects the right of society to say what is acceptable and what isn't. And today that means prosecuting Christians for holding to the moral code that Devlin advocated. In other words, his own legal theory undermines the ability of Christians to follow Devlin's moral code. Sure, when Devlin argued his theory, he assumed his Christian morality would dominate. One has to wonder whether he would realize his errors, if he were alive today.
Devlin said "it is not possible to set theoretical limits to the power of the State to legislate against immorality." At the time he assumed his view of immorality would dominate. Today in England, it doesn't. So what are Christians clamoring for?—limitations on the power of the state to legislate against immorality. Except today the immorality is that of bigotry, prejudice and discrimination against gays.
Devlin says the power of the State is unlimited, at least not limited by any theory. This is why Liberty Fund's publication of his book is a violation of the very principles they claim to promote. Devlin has no objective definition of morality at all. For it is "what every right-minded person is presumed to consider to be immoral." So, in a secular world, if right-minded people believe faith to be an immoral means by which people evade thinking, then faith would be immoral and legally sanctioned. Devlin pretty much dismisses reason; he says: "It is the power of commons sense and not the power of reason that is behind the judgements of society." It is as if he is living up to the very worst of what Rand called the "whim worshipper."
Devlin says that because there is a "general abhorrence of homosexuality" and because people find it "a vice so abominable that its mere presence is an offense" he concludes, "I do not see how society can be denied the right to eradicate it." What does it mean to eradicate it? No law prevents people from being born homosexual any more than the laws of the Third Reich could prevent people from being Jews. But, what of the culture that now dominates much of Western civilization, where bigotry and prejudice is seen as abominable and inherently offensive?
Devlin may have thought he was defending Christian morality with his arguments. What he was defending was the concept that individuals do not have rights, that rights reside in collective bodies, and that the social collective has the right to use force against anyone who offends the majority opinion in that society. Devlin justified the very legal situation that Christians in England find themselves today. They may be his religious heirs, but it is Devlin's legislative heirs who are tormenting them. Classical liberal rights theories cut through that. Liberalism would have opposed the persecution of homosexuals in England in the 50s, and it would oppose the prosecution of Christians today. Devlin's religious descendants would benefit from a modern Wolfenden Report that once again called for a separation of private morality from the realm of the law.
The great irony of the Devlin/Wolfenden debate is that Devlin's ideas won but it is his religious heirs who suffer because of it, not homosexuals. Every legal structure should be built as if one's worst enemies would control it. If that is done, the rights of all will be protected.