Fleming, Robert B.

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 12 Number 3 Symposium: New York Family Court Act Article 17 6-1-1963 Law, Liberty, And Morality. By H. L. A. Hart. Robert B. Fleming University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Law and Society Commons Recommended Citation Robert B. Fleming, Law, Liberty, And Morality. By H. L. A. Hart., 12 Buff. L. Rev. 640 (1963). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol12/iss3/17 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BOOK REVIEWSLAW, LIBERTY, AND MoRAuixy. By H. L. A. Hart. Stanford, California: StanfordUniversity Press, 1963. Pp. 88. $3.00.Professor Hart presents three lectures first delivered at Stanford Uni-versity as one of the series of Harry Camp Lectures, established in 1959to elicit discussion of "topics bearing on the dignity and worth of the humanindividual." The quoted phrase, however awkward, should be mentioned here,as well as the denotation of lectutes, because both will bear upon appraisal.Such lectures not infrequently offer scholars an opportunity to stand asidefrom their usual preoccupations and pursue a more reflective vein.In fact, however, this particular offering is simply the most recent install-ment in the continuing controversy between Professor Hart and Lord Devlin overthe enforcement of morals by means of the criminal law.' Their disputationhas not remained a private one, nor is it confined to Englishmen. Dean Rostowand Professor Henkin most recently have also entered the lists,2 the first onthe side of Devlin, the latter favoring Hart, but there has been no real joinderof issue on this side of the Atlantic, if indeed on the other. This means thatthe anticipations one may have reasonably entertained in approaching Pro-fessor Hart's lectures are not in order.Professor Hart's concern here is to question society's justification for theenforcement of private morality as such. The question itself is a moral one,in his terms to be considered according to principles of "critical morality,"i.e., the mere fact that a morality is being enforced does not provide thenecessary justification; witness such moralities as South Africa is strugglingto enforce. And justification there must be if we are to sacrifice the liberty ofthose who are the subject of the enforcement. We should be quite sure whatsuch a price will purchase for society. The price is a very real one to Hart,because of the many statutes in America, and England to a lesser degree,which prohibit private sexual immorality on pain of criminal sanction. Healso is much disturbed by a recent, much mooted decision of the House ofLords which broadly reasserts the existence of a common law offence of "con-spiring to corrupt public morals." 3The author's position is clear and straightforward. He believes that noadequate justification can presently be shown for legally enforcing moralityfor its own sake. He generally follows the view of John Stuart Mill, whoseessay, On Liberty, is cited frequently. Mill would require a showing of harm1. See Lord Devlin, "The Enforcement of Morals," the Maccabaean lecture in Juris-prudence of the British Academy, 1959 (Oxford University Press, 1959); Prof. HLA.Hart, Immorality -and Treason, The Listener, July 30, 1959, pp. 162-63; Lord Devlin,Law, Democracy, and Morality, 110 U. Pa. L. Rev. 635 (1962).2. Rostow, The Enforcement of Morals, 174 Cambridge L.J. (1960) at p. 190; Hen-kin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391 (1963)."3. Shaw v. Director of Public Prosecutions 2 A.E.R. 446 (1961).BOOK REVIEWSto others before society could apply sanctions. Professor Hart also takessustenance from the report of the Wolfenden Committee. This eminent group,in recommending that the law against private homosexual practices betweenconsenting adults be relaxed, stated: "There must remain a realm of privatemorality and immorality which is, in brief and crude terms, not the law'sbusiness." Lord Devlin's position is of course to the contrary, as was thatof the 18th Century judge and writer, James Fitzjames Stephen, whom Hartsummons to join the fray.4The second lecture deals for the most part with examples from Anglo-American law that are said to represent enforcement of morality as such.Although Harts concern is with sexual problems, the examples taken fromDevlin and others unfortunately are not. The author shows that many of therules in question (e.g., the victim's consent is no defense to a charge ofmurder.) do not exist solely to enforce morality; rather they are examplesof paternalism. Hart agrees that in punishing criminals judges do weigh therelative wickedness of persons being sentenced, applying morality directly soto speak, but he correctly shows that this fact has no logical relevance to theissue of what acts may be punished. In discussing the crime of bigamy, theauthor stresses the peculiar fact that in most common law jurisdictions onlythe second marriage ceremony, the public act, is proscribed, not the privateimmorality of the resulting cohabitation. The crime is in the nature of anuisance, to be condemned by reason of its affront to others, and not by reasonalone of the moral problem involved. Turning from examples, the authorconcludes this lecture with a consideration of the more positive grounds offeredby Lord Devlin for his conclusion that "the suppression of vice is as muchthe law's business as the suppression of subversive activities." Devlin's positionin substance is that a shared morality is essential to society's existence andthat immorality jeopardizes or weakens society. Professor Hart, while agreeingwith the first assertion, shows that there is no evidence on which to base thelatter, certainly at least with respect to private deviations from accepted sexualmorality.In his final lecture, the best of the three, the author deals with clarityand insight with a variety of topics. He is essentially concerned with identifyingwhat he terms an extreme thesis for enforcing morality, attributed to Stephen,the view that such enforcement "is justified not by its consequences but asa value in itself." Considering enforcement in the form of coercion, Hartconcludes that coerced conformity with a moral code, as distinguished fromvoluntary compliance, can have no moral value. Considering the punitive aspectof enforcement, especially in the case of sexual violations where there is novictim, Hart finds such retributive sanctions wholly- without justification.Adding the evil of suffering "to the evil of immorality as its punishment" can4. Stephen's book, Liberty, Equality, Fraternity, was written in the last century, soHart states, as a direct reply to Mill's essay, Onl'iberty.BUFFALO LAW REVIEWserve no moral end. Stephen's strong theme of retribution is identified byHart with a supposed need for denunciation: moral condemnation of theoffender and ratification of the violated morality. Hart would employ words,rather than punishment, for any necessary denunciation, the latter being in-effective in his view to preserve morality. Professor Hart next distinguishesbetween the need to preserve morality and moral conservatism, there beingno justification for the latter, while the former can as well be achieved bymeans other than legal sanctions. The lecture concludes with a reminder thatcommitment to democratic principles does not entail what Professor Hartterms "moral populism: the view that the majority have a moral right to dictatehow all shall live."The lectures certainly show Professor Hart scoring a fair share of pointsin the controversy with Lord Devlin. But somehow his work strikes one asbeing old-fashioned and missing the point; not the point presented by hisopponent, but the general problem of the relation of private morality as suchto the law. This despite the author's evident dedication to liberty and themany insights he affords us. His logic is exemplary, but we seem to end upwith most of the juice squeezed out, with the life of the problem missing. Topoint out the non sequitur in the example of the judges' gradation of sentencesmay be a service and add a score against Devlin; however, it does not meetthe problems, and opportunities perhaps, for law and morality which inherein the judges' practice.Our author is not the only contestant who leaves us unsatisfied. LouisHenkin's discussion of the "sin of obscenity," noted earlier, presents the mostrecent case. His fine essay explores the origins of morals legislation, and Ibelieve, establishes the fact that the lawmaker's impulse is directed againstimmorality as such. His treatment is in terms of our Constitution, and bythat approach the rather frightening conclusion is reached that there is nobasis for morals legislation: legislators can constitutionally deal only with thereasonable, the rational, and in a reasonable way; private morality is notin the rational order; therefore, etc. Accordingly, Henkin would place Americain the Hart camp, if only because of our special constitutional situation.If our existing morals legislation is largely based upon the irrational, weare not forced thereby to discard it out of hand with Professor Henkin,6 orfail to see its implications with Professor Hart, resolving to do better in thefuture. Nor can we expect much help from Lord Devlin in light of Hart'sanalysis of Devlin's arguments. Rather it would seem in order to examineanew what we now take to be irrational, to explore the possibilities of rationaliz-ing morals, particularly in relation to law. 6 'Their' claim to the effort would5. It should be noted that Professor Henkin neither advocates nor predicts revolu-tionary progress in this direction.6. This task of the centuries is perhaps the most formidable that can be imagined, butwe cannot fairly be said to be without hope of finding some hint of order or rhyme orreason in "the common condition of mankind." In fact our law contemplates such, andBOOK REVIEWSseem to be a weighty one, if only because of their embodiment in so muchof our law. Of course morality can make no claims; persons, human beingshave claims and wants and needs. And in society they should be able to askof the law a commitment to meet many of them. As we come to know moreof the irrational, we may hardly decide that much of our morals legislationcan be securely justified. But we may well find that such laws are much morethan religious relics and may in fact be expressive of proper needs of ourcitizens.7The basic problem of having the law enforce private morality as such, aswe are confronted with it, arose as Lord Devlin stated when the state recognizedfreedom of worship and conscience. Professor Hart in these lectures doesnot seek a means of evaluating the claims of morality as such on the law;rather, he successfully disposes of some of the justifications offered by othersfor the enforcement of morals. If these grounds are admittedly unsatisfactory,it remains true that Professor Hart has broken no new ground in dealing withthe larger problem. His impressive contribution is to clarify the situation, toenable us to get on thus with the main task ever present: to maximize thegood our best moral perceptions and thought can add to the law.ROBERT B. FLEmIGProfessor of LawState University ofNew York at BuffaloCiVI. JusT cE AND TE JuRy. By Charles W. Joiner. Englewood Cliffs, NewJersey: Prentice-Hall, Inc., 1962. Pp. 238. $6.95 (Under the Auspicesof and in Collaboration with the International Academy of Trial Lawyers).Delay in the courts, mounting jury verdicts and the increased cost ofadministering civil justice have converged in the last decade to question anewthe value of the jury in civil cases. Although our Federal Constitution requiresa jury trial in the Federal Courts incertain "suits at common law," it doesnot require a trial by jury in civil cases in state courts. Most state constitutionsand statutes require it, but these provisions are subject to change. Hence, thequestion arises whether the several states should follow the lead of Great Britain,some European and most South American countries in limiting jury trials towe all generally do the same in facing our lives; the newer sciences, particularly psychiatry,daily yield more insights to help us.7. Consider, e.g., the work of Robert Rodes, A Prospectus for a SymbolisUt Jurs-prudence, 2 Natural L. Forum 88 (1957). In this original and provocative essay ProfessorRodes effectively argues for a symbolic role of the law as fulfilling vital human needs.In doing so, he (rationally) makes deep inroads.upon what Professor Henkin and otherswould seem to consider irrational beyond hope. Of the participants in the controversydiscussed herein, Stephen, if he can be considered such, is the only one who shows muchappreciation for the role of symbolism in the law. This should not be overlooked, how-ever much his harshness repels us.

Law, Liberty, And Morality. By H. L. A. Hart.

bepress Legal Repository

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=2912&context=buffalolawreview

Law, Liberty, And Morality. By H. L. A. Hart.

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law

bepress Legal Repository