Conservatives, more than liberals, are in favor of exacting obedience to conventional moral rules. Liberals, more than conservatives, tend to view this as a form of social tyranny. This division along ideological lines is clearly evident in what has come to be known as the Hart-Devlin debate. Patrick Devlin has insisted on the social importance of conventional morals, and has argued that it is sometimes appropriate to use the law to suppress immorality.On the hand, H.L.A. Hart has argued that the law has no business enforcing morality per se and that we would do well to observe, with some qualifications, the sort of limits on social power recommended by John Stuart Mill in his essay On Liberty. In this paper I shall attempt to survey the Hart-Devlin debate with the intention (1) of seeing what can be said for the conservative position and (2) of discovering what important issues the liberal position fails to address.

In broad terms, the debate between Hart and Devlin is over the legitimate scope of the criminal law. Does society have the right to use the law to enforce morality, or is it the case that no such right exists? The focus is on sexual morality with homosexuality between consenting adults in private as the test case. Siding with Mill, Hart asserts that in the area of sexual morality the only justification for employing legal coercion is to prevent harm to others.2 However, Hart concedes that outside of this area there are occasions when the law ought to be concerned to prevent self-regarding as well as other-regarding harm.3 Thus, while Mill was dead set against paternalism, Hart believes that it has its place, though he insists it must be a paternalism restricted to the prevention of self-regarding harm, the protection of an individual’s moral virtue is none of the law’s business.

In reality, Hart has little interest in radical legal reform. He would have us leave most of contemporary Anglo-American law as we find it.In part, this is because where Devlin sees instances of the enforcement of morals, Hart finds something else.For example, Hart contends that euthanasia is not to be tolerated, even with the presence of the victim’s consent, because the law properly has a paternalistic interest in preserving life. With bigamy the concern is not to prevent immorality but to regulate a public act-the bigamous marriage ceremony-that tends to offend religious sensibilities, making it a public nuisance. Thus, under Hart’s interpretation, laws against euthanasia aim at preventing self-regarding harm, while laws against bigamy are meant to stop other-regarding harm.4

For his part, Devlin complains that Hart fails to realize that society, as well as individuals, can suffer injury. Immorality can damage society by undermining social cohesion. Shared moral beliefs are the cement that binds the members of society into a cohesive whole. It is these shared beliefs, no matter what their content, that give a society its particular identity and provide its members with a sense of union.5 Devlin is careful to say that the law ought not to attempt to enforce all of morality. Its concern should be limited to those cases where immorality threatens social cohesion, where it tends to weaken prevailing shared moral beliefs.6 It is Devlin’s contention that when the average man displays deep and intense disgust for a particular instance of immorality this is a good sign that this is the sort of immorality that can threaten social solidarity. It is here that society may have need of the law to protect it from disintegration. Devlin concedes it is a practical question, requiring a balance between social integrity and individual freedom, whether the law ought actually to be employed for this purpose-a balance that shouldalso be informed by a recognition that the role of the law is to demand of individuals only the minimum, rather than the maximum, of what is required for civilized life.7

Yet surely, one might want to say, homosexuality between consenting adults in private cannot possibly threaten social cohesion. Perhaps not by itself, but Devlin insists that we cannot view it in isolation from the rest of morality. The moral beliefs of the average man form a seamless web. This means that if one moral belief is undermined then the rest may also be weakened. Consequently, every instance of immorality is theoretically a subject of legislative concern.8 Since Devlin is convinced that homosexuality in private between consenting adults elicits disgust in the average Englishman he contends that, even after striking the requisite balance between social integrity and other important values, English law ought to prohibit it. Devlin is aware that this kind of moral deviance constitutes a victimless crime and that it is therefore very hard to eradicate. But it would seem that the point for Devlin is not so much to effectively repress homosexuality as it is to prevent it from undermining the average Englishman’s faith in his moral beliefs. When the average man sees the law struggling on his behalf this faith is strengthened.9

Hart is the liberal, he is against the legal enforcement of morality. Devlin is the conservative, he is for it. While liberals have traditionally been against the legal enforcement of morality it is instructive to ask why? Consider the position of the classical liberal, represented in the past by someone like Adam Smith, and today by F. A. Hayek. Classical liberals have urged minimal government because of their belief that the public welfare is best promoted by the spontaneous interaction of men rather than by deliberate government control. The paradigm case for this, of course, is economic activity. Yet, classical liberals have argued that this perspective has application beyond economics. It also applies to morals. Moral rules and moral opinions naturally emerge from the spontaneous interaction of average men. As to the nature of these rules classical liberals have differed. Some have supposed that these rules serve the general interest because they are true, while others have more modestly assumed that it is not their content that is important but rather their capacity to insure predictability and social stability-a position very close to what Devlin himself has maintained. Despite this difference of opinion on the nature of moral rules, classical liberals have generally agreed on one fundamental point: except for the need for government intervention to protect property rights and to enforce contracts, informal social pressures are almost always sufficiently powerful to exact obedience to conventional moral rules. It is this, along with the spontaneous operation of the economy, which makes minimal government possible. Otherwise there would be a greater need for government intervention into social life.10

Today, many liberals no longer share the classical liberal’s faith in an unregulated economy and support increased intervention in its operations. But if liberals can lose faith in the ability of spontaneous action to generate economic welfare, why couldn’t they also come to doubt its efficacy in the realm of morals? In fact, this seems to be Devlin’s view. He admits, as does the classical liberal, that conventional morality is important to society’s welfare, it is just that he denies that spontaneous social forces can always be counted upon to exact obedience. As it is now necessary to employ the law to regulate the economy, Devlin might be understood to say it is also necessary to sometimes use the law to regulate morality. Taken in this way, Devlin’s position might be viewed as naturally emerging from the classical liberal position once one grants a growing, and perhaps justified, pessimism about the capacity for spontaneous individual action to secure the common good.

How might Hart respond to this? He might simply argue that informal social pressures are still sufficient to control immorality so that the law need not be called upon to defend it. But this would be to indirectly grant the importance of conventional morality and the need for some kind of enforcement, if not by the law then at least by some kind of informal social pressure. However, if Hart would grant this much then he would be arguing against Mill who claimed that unless social power is limited to enforcing rules that prevent other-regarding harm it constitutes a form of social tyranny.Yet, despite Hart’s willingness to tolerate paternalism with respect to self-regarding harm, he gives every indication of wanting to side with Mill, not oppose him. In fact, Hart’s position seems to be that both law and informal social pressures are irrelevant because the enforcement of conventional morality is not essential for civilized life. More directly, he wants to claim that Devlin cannot sustain his assertion that, theoretically, all immorality has the potential for undermining social life.

Hart notes that Devlin’s conception of social cohesion comes very close to Durkheim’s notion of mechanical social solidarity.11 It is the notion that certain shared ideas are necessary for social union.Without them individuals lack a sense of membership in society and this undermines social cooperation and good will towards one’s neighbors. The content of these ideas is irrelevant.They need not aim at the promotion of social welfare, and they can even cause a great deal of individual misery. However, so long as this does not reach a point where society can no longer effectively continue in its struggle with nature or with neighboring societies, then these beliefs can support social union. According to Durkheim, the criminal law has always been a natural ally of mechanical solidarity. It has come to its aid not so much by effectively controlling the spread of deviant beliefs and practices but by lending symbolic support for the shared ideas that bind the members of society together in union and accord.12 Hart is correct, this is very close to Devlin’s conception of social cohesion.

In any case, Hart remains unconvinced that this view of the criminal law as an ancillary support for morality can stand up under investigation. More to the point, he argues that the only part of morality that ought to receive support from the law is that segment which contains "those restraints and prohibitions that are essential to the existence of any society of human beings whatever."Furthermore, he thinks that we would do better to look to Hobbes and Hume rather than to Durkheim to discover this "moral minimum essential for social life." This minimum includes "rules restraining the free use of violence and minimal forms of rules regarding honesty, promise keeping, fair dealing, and property."13 Obviously this conclusion does much to bolster Hart’s original claim that the primary purpose of the criminal law is to prevent harm.

It is curious that Hart did not give Durkheim a closer reading for it appears that Durkheim could prove a valuable ally. Durkheim saw mechanical solidarity as only one of two possible forms of social cohesion. There is also organic solidarity. Mechanical solidarity works by enforcing uniformity in beliefs and practices, while organic solidarity operates by coordinating different, though not contradictory, patterns of behavior. Organic solidarity naturally arises as an instrument of social cohesion when a society begins to exhibit a considerable advance in its division of labor. Because a division of labor requires a proliferation of roles it naturally generates a diversity in beliefs and practices. However, while such diversity might cause social disintegration in primitive societies it does not threaten social union in advanced ones. Interdependence is an essential feature of the division of labor and this reinforces the prevailing sense of union that exists in modern societies. Organic solidarity, claimed Durkheim, is the principle form of solidarity for all modern industrialized societies. Mechanical solidarity is appropriate only for primitive societies with simple economies.14

Furthermore, Durkheim argued that his own research had revealed that the criminal law no longer functions as an important source of social solidarity in modern societies. Civil and administrative law have replaced it in this capacity since they tend to complement the division of labor by lending precision to social and economic roles and their modes of coordination.15 If Durkheim is correct in his assessment, then it might seem reasonable to assume that whether or not the criminal/law includes sexual morality within its scope it is of little importance for the issue of social stability. And this supports Hart’s assertion that the criminal law need not always stand ready to enforce conventional morality whenever it comes under attack. Of course, Hart would not consider Durkheim’s support essential in any case since he believes that he has done enough on his own to discredit Devlin’s conception of social cohesion and its relation to the criminal law.

If Hart is right and Devlin wrong is this the end of the debate? Can nothing more be said for the conservative position? Perhaps there can. While Hart sees no evidence for Devlin’s "disintegration" thesis of the enforcement of morals, he suggests that Devlin might be on more solid ground with his "conservative" thesis. It is the notion that the majority have a right to preserve their own way of life, even to the point of sometimes enforcing their morality on a rebellious minority.16

Devlin’s "conservative" thesis seems to be linked to his belief that in the absence of spiritual authority the best way to determine moral standards is through some form of the democratic process (public opinion, juries, votes).17 But one would like to know what rights are left to minorities in this scheme. It would appear that when the majority’s feelings are sufficiently intense Devlin would accord very few rights to minorities. Recall his comments on the role of disgust. It is a sign that the average man has had enough and needs the law to intercede to give support for his moral beliefs against the demoralizing practices of a deviant minority. According to Devlin, when feelings of intolerance run high the state may legitimately force a deviant minority to bend to the will of the majority.18 This seems pretty harsh.Can anything be said in its defense?

At one point Devlin complains that the liberalism of individuals like Mill "enable(s) one man in a hundred to hold up indefinitely projects which would benefit the other ninety nine."19 We are all familiar with this sort of problem in other contexts.It is at the heart of the closed-shop issue in labor legislation. Trade unionists argue that compulsory union membership means strength at the bargaining table. Management makes concessions when it believes that labor is unified. But if workers were given a choice, a significant minority would refuse to join the union. They are the typical free-rider, accepting benefits without paying dues. Yet these very benefits depend upon labor’s ability to present a united front. Therefore, it is only by means of a closed-shop that a minority can be prevented from frustrating the legitimate interests of the majority. Perhaps the trade unionist is correct, but does conventional morality also require a closed-shop? For example, would tolerance for clandestine homosexuality prevent the majority from pursuing their own heterosexuality? It is difficult to see how it would.But if it does not hinder the heterosexuality of the majority, then what justification can there be for repressing it?

At another point Devlin complains that liberalism requires the majority to tolerate what they know to be evil and what "no one asserts to be good."20 Again, does this apply to the case of homosexuality in private? Is it true that no one speaks out on behalf of homosexuality? Certainly they do. Both in past and present.Is it true that no one speaks out on behalf of homosexuality? Certainly they do. Both past and present. There was the inspiration of Achilles in Homer’s Iliad. Achilles went into a rage on learning that the Trojan hero Hector had slain Achilles' lover Patroclus. The rage turned Achilles into a super human warrior that day, slaughtering Trojans wherever he found them on his way to Troy. Standing before the fortress he called Hector out. The gates opened and Hector appeared. But when he beheld Achilles blood-drenched from so many kills, Hector bolted. He ran in terror around and around Troy, Achilles the tireless hound harrying the rabbit. Achilles finally struck Hector down. Still insane with fury out of his love for Patroclus, Achilles dragged Hector behind his chariot until the hard ground peeled off Hector’s skin.

The homosexual ideal of the Iliad was kept alive in ancient Athens and Sparta. Though it is the Athenians, always more vocal, that left written testimony of their praise.Plato in his Symposium21 has Pausanias give a speech in honor of male homosexuality. Pausanias tells us that male homosexuality is more spiritual than heterosexual love. He reminds the audience that it was the homosexual lovers Aristogeiton and Harmodius that saved Athens' democracy from the tyranny of Hipparchus. The Athenians did not need reminding. They had erected a bronze statue to the gay lovers as the saviors of the democracy. It stood in the marketplace where foot traffic was heaviest so the two would never be forgotten.

Today homosexuality has the Gay Rights movement to defend it. The movement does not hold up homosexuality as the ideal. It only insists that many good people are gay, and that the practice should be tolerated.

If homosexuals do not harm others, if they do not make their homosexuality publicly offensive, then what is there about their activities that is inherently evil?

Devlin’s response seems to be that the majority just knows homosexuality to be evil, and that is all there is to it.22 But surely, given the role of morality in the "disintegration thesis," it would be more accurate for Devlin to say that the majority just find themselves with certain moral beliefs, rather than to suggest they know these beliefs to be true. After all, it is Devlin who has asked us to believe that the content of moral beliefs is irrelevant to the truth of his "disintegration thesis." They could all be blind prejudices and still serve the function of providing social cohesion. The importance Devlin ascribes to conventional moral beliefs has little to do with their truth and everything to do with the strength with which they are held. Consequently, the most that Devlin might say with consistency is that the majority feels strongly about their morality, not that they know it to be true. Indeed, on the issue of moral truth Hart seems to have the better position since he makes the prevention of harm the primary purpose of the law. While many may dispute the worth of various moral ideals, hardly anyone denies that harm is in some sense evil.

If Devlin encounters rough going here he might shift his ground and argue that at least there ought to be some balance struck between majority and minority interests. And if this balancing were to proceed along utilitarian lines a case might be made out that the distress homosexuality causes the majority far outweighs the delights of homosexuality. Yet, while Hart sees considerable merit in a utilitarian approach to morals he insists that it would be illegitimate to allow this sort of consideration to be factored into utilitarian calculations:

To punish people for causing this form of distress would be tantamount to punishing them simply because others object to what they do; and the only liberty that could coexist with this extension of the utilitarian principle is liberty to do those things to which no one seriously objects.Such liberty is plainly quite nugatory.23

This is an old compliant, it was lodged by both Bentham and Mill.24 Nevertheless, the problem lies with the logic of utilitarianism, not the attempt by conservatives to tyrannize over minorities. The solution is obvious-amend that logic. This, in effect, is what Hart has attempted. He has barred certain injuries from being factored into our utilitarian calculations.

Ronald Dworkin has recently spotlighted this issue as a central problem of utilitarian reasoning. Since liberals have traditionally employed utilitarianism to defend their position Dworkin recommends a revision of its logic so that utilitarianism can serve liberals without causing them embarrassment. He believes that this can be accomplished by distinguishing between two kinds of preferences. On the one hand there are what Dworkin calls "personal" preferences. They are for goods and opportunities that will increase one’s own personal happiness. On the other hand, there are what he calls "external" preferences. They are for "the assignment of goods and opportunities to others" with the intention that they will either increase or decrease their personal happiness.25 External preferences exist for a number of reasons.Altruism can cause one to want to make others happy. Prejudice can cause one to want to make others miserable. Moral fervor can make someone eager to dictate values to others.26 Whatever their source, Dworkin recommends that we exclude external preferences from our utilitarian calculations.

There is a close connection between Dworkin’s position here and his attempt elsewhere to identify the one element of liberalism that sets it apart from every other political philosophy. According to Dworkin this element is the commitment to treat people as equals.27At the very least, he says, this entails placing everyone’s personal preferences on a par with everyone else’s. Altruism violates this because it allows some individuals to give their vote to others so that they may enjoy a double count.Prejudice and moralism also violate it because they effectively cancel out the personal preferences of others.28

In brief, consistency requires that liberals exclude external preferences from discussions of public policy. Yet, this makes it difficult for liberals to take conventional moral beliefs seriously. If they are construed as external preferences then they are prohibited from playing a role in social policy.If they are to count only as personal preferences then they are placed on a par with things like economic self-interest.

In fact, it would seem that in his eagerness to defend the ideal of treating people as equals, and in his attempt to combat abuses like majority tyranny and moral absolutism, Dworkin has inadvertently recommended the impoverishment of social thought.

Certainly there is something defective in a view of the good society that can find no place in social policy for altruism, or that it requires us to view all pursuits as equivalent to attempts to achieve personal satisfaction. A common criticism, often urged by liberals themselves, is that we have mortgaged our ideals to consumer satisfaction.

It is not moral absolutism to say that society can enjoy economic abundance and yet be morally bankrupt. It is simply to recognize that in the absence of religion many people depend upon social and moral ideals to give meaning to their lives. This is not to deny that personal satisfaction has its place; it is a holdover from Puritanism to suggest otherwise. But it is also difficult to envisage the good life, or the good society, as consisting in nothing else.

The merit of conservatism is that it directly confronts the issue of moral ideals, not just as a problem for individuals, but as a problem for society as well. Perhaps it is true that once we allow for altruism in social policy or take conventional moral ideals seriously then the abuses of the sort that Dworkin is eager to see us avoid inevitably occur. But to guard against them in the way he suggests is simply to throw the baby out with the bath water.

Yet, it would be a misrepresentation to say that Dworkin himself does not appreciate the importance of social ideals.In a sense, he even appears to be in favor of the enforcement of morality. It is just that this morality is of a higher order than conventional morality.

When expanding on his conception of liberalism as a commitment to treat individuals as equals Dworkin says that, at base, this commitment requires that the state remain neutral on the question of the good life. The law must not enforce conventional morality, and it must not show favoritism for anyone’s preferences.

Furthermore, he claims that free markets are an efficient means for allowing everyone the best chance of satisfying their personal preferences, no matter how eccentric they might be.

Representative democracy is also to be endorsed because "it enforces the right of each person to respect and concern as an individual;..."29However, since the majority may abuse this right it is necessary to qualify democracy with a system of civil and procedural rights which function as the individual’s trump cards against majority tyranny.

Dworkin claims that all of this follows from what he describes as the "constitutive morality" of liberalism. This morality is a "theory of equality that requires official neutrality amongst theories of what is valuable in life."30 It is a morality that counts treating people as equals as an end "valued for its own sake."31 And its function is to umpire the way we treat ordinary social issues.In this sense it is similar to the "critical" morality to which Hart contends we must make ultimate appeal in resolving the issue of the enforcement of morals. This "critical" morality appears to be a blend of libertarian and utilitarian principles. It involves a respect for individual liberty balanced against a concern for advancing the general welfare. And this balance is struck by according individuals complete liberty as long as they do not cause harm to others or, on occasions, so long as they do not harm themselves.32

Neither Hart nor Dworkin seem to have the slightest objection against the law reflecting their respective versions of the higher morality of liberalism. Of course, they mean for this to occur less in the form of specific laws and regulations and more in the form of constitutional principles guiding the use of law as an instrument of social control. Yet, if it is justifiable to have the law reflect these higher moralities in this way why must there be such strict barriers to the enforcement of conventional morals? Hart’s answer seems to be that the conservative must first provide a higher morality of his own which shows that this enforcement is justified.In short, the issue must be joined at the level of critical social principles rather than at the level of first order moral rules. As far as I can discern, this is what Hart has assumed Devlin’s "disintegration" and "conservative" theses to be-attempts to provide a defense of a conservative version of a critical morality.It is just that Hart remains unconvinced that these attempts provide the justification required.

On the other hand, Dworkin acknowledges the existence of something like a conservative higher morality if only to use it as a foil for developing his own conception of the constitutive morality of liberalism. According to Dworkin, this conservative morality favors the enforcement of morals, sees free markets as an institutional device for rewarding virtue, and considers representative democracy a valuable vehicle for giving expression to the moral values of the majority.33 While there is no question about which morality Dworkin prefers, he does not consider the conservative morality utter nonsense. Rather, it is a different way of looking at society, one that emphasizes the importance of a common way of life, rather than the pursuit of individual preferences and ideals. And it would seem that in order to ultimately resolve the issue of the enforcement of morals one must first decide which of these two opposed higher moralities offers the best scheme of the good society. However, it is also possible that neither is completely adequate and that some sort of compromise is called for. In any case, it would be a mistake to assume that Devlin’s arguments for the conservative position are the last word, or the very best conservatives can be expected to provide. Furthermore, the fact that Devlin made his case rest on the wisdom of regulating private homosexuality tends to reinforce the picture of the conservative as a Victorian prig for whom morality and sexual morality are one and the same thing. Admittedly, we have become more tolerant about sexual matters, and this may be all to the good. But this does not imply that it is now time to become equally tolerant of everything else. This would make the mistake of equating sexual morality with all of morality.

Even liberals find it difficult to adhere to the strict liberal position when faced with concrete social issues. For example, it would appear that many conservatives are in favor of legal controls on abortions, while many liberals favor freedom of choice in this area. On the other hand, many liberals appear to favor legislation for the protection of the natural environment, while many conservatives are against it. Paradoxically, one might conclude from this that the conservatives are the ones who have adhered to the liberal position on these two issues and that the liberals have been for the enforcement of morals. Certainly support for restrictions on abortions might be construed as an attempt to save fetuses from harm, and the argument for the mother’s right to exercise complete control over her body, despite the harm it can mean for her fetus, as an attempt to demand respect for a particular moral ideal. Similarly, conservatives have argued that permitting the economic development of wilderness areas generates public welfare and that restrictions on it endanger jobs—an obvious harm.Yet liberals have often argued that the sanctity of nature is an ideal worthy of this sacrifice. Here the conservative seems to be arguing for the liberal position and the liberal appears to be the moralist. This is not to say that the positions that liberals have taken on these two issues are necessarily incorrect, it is only to say that it is difficult to see how one can be a strict liberal in the sense we have been discussing and easily argue for such things. This suggests that there may be a serious defect in both the prevention of harm paradigm of the law, and the personal preference notion of public policy. Both conceptions seem to foreclose many legitimate attempts to give legal force to moral concerns.

Finally, is it not possible that the liberal conception of the good society unfairly restrains the average man’s desire to contribute to social progress? At the risk of caricature, permit me to offer a sketch of the ideal liberal society along with some problems it would likely present for the ordinary man.In such a society every individual would be free to pursue his own plans, or his own morality, so long as he does not injure or force his values on others. As it stands this seems unobjectionable. But suppose it turns out that within such a society there are a minority who, because of their special talents or resources, are able to organize and influence events so that society is made to move in a direction they approve. The less favorably situated majority might very well become alarmed by this turn of events, particularly if it happens to point in a direction they disapprove. Realizing that politics is an equalizer, they might be tempted to employ it in order for their own vision of the good society to have some effect. Should they succumb to this temptation? As good liberals they should not. Yet, if they fail to succumb then they must accept the fact that those with non-political social power will dictate the terms of social progress. However, if they do succumb to this temptation, and abandon liberalism, they will have a chance to exercise their own sense of responsibility for the future. Surely if the liberal society requires ordinary men to make this kind of choice should we blame them if they should sometimes feel compelled to turn their backs on liberalism?

This does not mean that the majority has the right to dictate the terms of social progress to the minority. But fairness requires that they should at least enjoy some degree of influence. Just how large this influence ought to be is not, I think, a question that admits of either definite or final resolution. But, at minimum, it implies that there will be some occasions when it will be legitimate for some segment of society to attempt to give effect to its notion of the good society. Have not liberals themselves engaged in this when they have argued for civil rights, fair housing, affirmative action, and the E.R.A.? Perhaps Hart would prefer us to construe them all as attempts to remove harm. But I think that it strikes closer to the truth to say that they have been attempts to nudge social reality closer to social ideal. And, if I am not mistaken, this is part of what the enforcement of morality is all about.