Can We Legislate Morality? Some Contemporary Reflections

Author: Professor Kwaf Kai-Man

In the 1960s, a famous debate between Lord Patrick Devlin, a judge, and H. L. A. Hart, a law professor, happened over the issue of the legal enforcement of morality. While Devlin argued for the in-principle justifiability for the society to legislate on morals (legal moralism), Hart sharply attacked legal moralism. Christians usually are on the side of conservatives who defend some form of legal moralism (e.g., using the law to prohibit homosexual sex), but since the Hart-Devlin debate, the mainstream opinion in the academy, which has also developed into a kind of “common sense,” is that legal moralism is simply unacceptable in modern liberal society. In Singapore, the debate about Section 377A of the Penal Code, which criminalises consensual sex between adult men, is still raging. Although according to a survey in 2018, 55% of Singaporeans still supported 377A, the liberals and the gay movements supporters have unceasingly tried to strike it down. Their most common rationale is that we just can’t legislate morality.

Of course, this position can be traced back to J. S. Mill’s famous harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right” (Mill 1985, p. 68). Many now regard this as a “self-evident” truth, but in the last two decades, many scholars have come to doubt the harm principle, and some have provided substantial defense of legal moralism. This debate is very complicated. Here I can merely introduce some main points very briefly.

One example of a drastic change of attitude is Jeffrie Murphy. In 1966, he wrote, “Thus it seems to me that any theoretical attempts at a revival of legal moralism must necessarily fail and that all practical application of legal moralism ought to be eradicated” (Murphy 1966, p. 54). But recently he admitted that this “publication in legal philosophy was an uncritical endorsement of Hart’s critique…- a publication so truly dreadful that I no longer even list it on my CV” (Murphy 2006, pp. 46-47). He also talks about his “increasing skepticism about Mill’s harm principle… [Even] Mill does not believe that all liberties are created equal…If the liberty is not all that important, … then I see no reason why the state would necessarily have to demonstrate harm at all before encumbering it- offense, for example, might be enough” (Murphy 2006, p. 48).

One basic problem with Mill’s harm principle is due to the amorphous nature of the concept of harm. For example, although Ronald Dworkin is a staunch defender of liberalism, he points out that the concept of harm can be interpreted more strictly or more loosely. If we use a loose concept of harm, there is no reason why the conservatives cannot help themselves to this concept: “Devlin’s argument that society will fall apart without conformity in these mattes is surely wrong, but the novel sexual or religious practices of any large group will have general social consequences that will change the social environment in which everyone must live, and those who regret that change will certainly suppose that they have been harmed” (Dworkin 1977, p. 10).

So liberals are facing a dilemma: “It is not easy, however, to provide a definition of harm that will exclude these general social consequences and yet not prohibit, on Mill’s principle, much social legislation that liberals find desirable. Many liberals argue … that private schools should be abolished because the social divisions they foster are harmful to society as a whole. … If we say that harm … is restricted to uncontroversial harm to particular people, then Mill’s principle would not permit abolishing private schools. If we adopt a more generous definition of harm, such that the social consequences of permitting elitist education may count as harm within that definition, then the social consequences of permitting sexual licence may also count as harm” (Dworkin 1977, p. 10).

In short, if the concept of harm is too loose, we need to accept many laws which liberals want to exclude; if the concept of harm is too strict, liberals cannot accept many laws which they tend to support. In general, many laws which are widely accepted by many (including liberals) in fact cannot pass the test of the harm principle: “Much economic legislation is defended, not on the ground that it prevents direct harm to particular people, but because it creates an economic environment in which the community as a whole is able to prosper. Anti-trust laws, … and laws limiting production or development of scarce resources … Various forms of social legislation, including laws to improve race relations, are often justified along similar lines, and aesthetic regulations, like laws prohibiting the owners of buildings of historical interest from destroying or changing these buildings, are justified because they protect the environment or culture of the community as a whole” (Dworkin 1977, p. 10). Obviously, these laws appeal to many kinds of value rather than harm.

The second major problem is that there exist many counterexamples to the harm principle. Long time ago, Devlin has pointed out: “Euthanasia or the killing of another at his own request, suicide, attempted suicide and suicide pacts, dueling, abortion, incest between brother and sister, are all acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others. … no one hitherto has gone so far as to suggest that they should all be left outside the criminal law as matters of private morality. They can be brought within it only as a matter of moral principle” (Devlin 1965, p.7). In his view, “there is in England, as in all countries there always has been, a great deal of law that is inconsistent with [Mill’s] doctrine” (Devlin 1965, p. 127).

Liberals are likely to repudiate some of these “counterexamples” but examples like dueling, animal cruelty law, incest and legal regulations about environmental conservation are harder for the liberals to dismiss. I have hardly scratched the surface here but due to limitations of space, I have to stop here. I just want to say that we can no longer regard the harm principle as a self-evident truth, and encourage more Christian scholars and theologians to do research in this area.

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