The second-youngest English High Court judge in the 20th century, he served as a Lord of Appeal in Ordinary from to In , Devlin headed the Devlin Commission , which reported on the State of Emergency declared by the colonial governor of Nyasaland. In he became the first British judge to write a book about a case he had presided over, the trial of suspected serial killer John Bodkin Adams. Hart , that a common public morality should be upheld. Patrick Devlin was born in Chislehurst , Kent.
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It is clear that law has limits. More interestingly, though, does law have principled limits? The best known positive answer to this question is that given by John Stuart Mill. Other influential proposals for principled limits to the law are also examined: for example, the suggestion that law must eschew certain kinds of otherwise valid moral reasons and that the law must be in some sense neutral.
Finding principled limits to the law, it will be suggested, is an elusive task. I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.
Law has limits. That is obvious. Legal officials at various times and in various places have objectives and they need to find the best way of achieving them.
Some might seek to end casual street violence, so impose stiff legal penalties on anyone caught engaging in such conduct. Some might seek to end demonstrable harms caused by alcohol or drugs through prohibiting their sale and consumption.
Others might seek to meet housing needs by imposing minimum standards for accommodation on those who rent out their properties. Though they seek the best means of reaching their goals, they might fail and the failure could be dramatic. In all the examples mentioned above the aims sought may not materialize. The stiff legal penalties imposed by those seeking to curtail street violence may lead only to an increase in violence as perpetrators reason they may as well be hung for a sheep as a lamb.
The prohibition of alcohol consumption may merely drive consumption underground, failing in its purpose and succeeding only in adding to the stock of societal harms as further criminality incident on the prohibition grows. Property owners, rather than forking out for legally mandated improvements to their rental property, may simply take their properties off the market, resulting in fewer affordable properties available for rental and fewer needs met.
In each case the law has overreached itself. Having observed the results of their efforts, the legal officials may conclude that it would have been better to have used other means or maybe even to have done nothing, to have tolerated the former level of harm, since their means of putting it to an end did not solve the problem aimed at, but exacerbated it.
In pursuing the best result as they see it, they have achieved only the third-best and now the problem might be the embarrassing one of getting back to second-best.
These are familiar stories in skeletal form and illustrate the commonplace that the methods the law might use can simply misfire. There are limits to what the law can achieve because some of its tools are blunt. Some tools do not work, others are counter-productive; some exacerbate the problem they were supposed to resolve.
Knowing what works and what does not and what will be counterproductive is important knowledge indeed. Again, enforcement of a desired policy may be prohibitively expensive and divert resources away from still more important goals a state may wish to pursue. A state may also need to consider in some contexts the psychology of its citizens. But the point can be made more general: there may be no way for a state to suppress a greatly undesired activity without also disturbing a greatly desired activity.
Law can coerce, it can make rules, it can adjudicate, but one can only go so far with these tools Fuller Law must seek to do the best possible with the tools available.
Law does have limits. It has at least the means-ends or practical limits that have just been discussed. But this is too uncontroversial to be a particularly interesting claim and it gives nothing of the flavour of what has made this topic such a controversial one.
We turn to that in a moment. It is important to bear such practical limits in mind nevertheless, since one possible way to delineate the limits of the law is that such practical limits are the only limits that States must negotiate in its legislative and more broadly legal behaviour, beyond the platitude that it must act in a morally acceptable way. In this sense the immorality of an action or value of the goal to be achieved are none of them sufficient of themselves for state coercion.
The controversy begins when the question of principled limits is raised. Means-ends or practical limits apply just as much to evil and unjustified regimes as they do to legitimate ones, albeit in different ways.
If we assume that through the instruments of its law a state has or ought to have the formal aim of legitimate government, we should ask whether there are any principled limits to the law? Lord Devlin in the quotation at the start of the essay denies that there are any such limits. As we shall see, answering the challenge to articulate principled limits is a far from straightforward task.
Much of the debate has revolved around the place of moral reasoning in justifying state action, most commonly in justifying the use of coercion. Everyone agrees that the immorality of an action is not a sufficient reason for state coercion since as we have seen there are means-ends limits and practical limits. But there is little more common ground. Must the state abstain from considering and acting upon certain kinds of consideration in order to rise above the sectarian adherence or invocation of one controversial understanding of what makes for a good life?
I shall suggest that the central tension is over the recourse that a state should have to moral premises for which truth is claimed. If one denies that there is anything in principle to restrain a state's recourse to moral truth in the passing of the law, there is the problem of disagreement.
Disagreement can be widespread and intractable. So what should a state do in the here-and-now where there is no consensus, even among reasonable people, about what ought to be done? Can it simply enforce what it takes, controversially, to be the right solution? On the other hand if one tries to restrain in principle the State's recourse to moral argument, ruling out of consideration certain kinds of argument based on moral truth, the challenge is to do this on a satisfying basis that is not merely ad hoc.
In communities in which there had been sufficient progress towards civilisation, it is of great importance to protect and promote liberty of action for all. States in general should acknowledge the importance of such liberty of action and should limit their law accordingly.
Interference with liberty of action, especially by the use of power or coercion, required a special sort of justification: that it was needed to prevent harm to others. To coerce on the basis that one wishes to avoid harm to others is of course to coerce on a moral ground.
Mill thought that no other moral ground would be good enough. This view has been highly influential. There does indeed seem on the face of it to be something special about harm. Harm to others , for Mill, is to be contrasted with offence to others, with harm to the person to be coerced herself , who normally consents to the harm, and with the bare harmless immorality of the conduct she would otherwise seek to engage in. Mill had in mind in particular the security interests and autonomy interests of persons.
The State may legitimately stop A from beating up B, even though this limits his freedom of action, because this prevents harm to B, it protects his interest in security.
And it may stop A from stealing from B, as it protects inter alia B's freedom to dispose of his property as he wishes. But the State oversteps its proper limits on this view if it purports to stop A smashing up his own property; or to protect C from the offence she will take knowing that A is doing this.
In more recent times Joel Feinberg has sought to vindicate a broadly Millian understanding of the limits of the law. He proposes a different version of the harm principle, thus:. In comparison with Mill's principle this seems rather weak. He proposes a broad answer over the course of his four volume study of the limits of the law, albeit with some trepidation: it is, quite simply, none—there are no other good reasons for State coercion.
If there is no harm to others and no offence to others to counter, there must be no coercion. In this way Feinberg professes his fidelity to the animating spirit of Mill's On Liberty. The former he describes thus:. Suffice it to say here that Feinberg is not equally hostile to all forms of legal paternalism.
In many cases the forcible implementation of a person's will can accord with his personal autonomy. This he rules out on grounds of legitimacy. I shall continue to do so merely as shorthand. The table below illustrates some divergence in the views of the leading thinkers associated with the Harm Principle as to the proper limits of the legal coercion.
No one of them has an account with exactly the same conclusions as any of the others. I will later come to another strand of thinking about the limits of the law: that the law must remain neutral between different understandings of the nature of the good.
It must coerce, when it coerces, neutrally between such understandings. Having gone to the trouble to state the thesis in question—that the State should see to it that people live good lives—and to cite two heavyweights in its support, Hart's final sentence comes as something of a surprise. He took the view, it would seem, that there was little to be said for a view of morality according to which it awaited discovery by reason or disclosure through revelation.
So much so that it was not worthy of serious discussion. The reason-based, revelation-based and the man-made versions of the view all tend to arouse suspicion. The moralist has been branded a kill-joy and, more darkly, an inquisitor.
Harmless activities which give pleasure or are otherwise valued by some are thought fair game by the moralist because immoral or vice-ridden. Lord Devlin, at the time an English High Court judge, was reacting to a government report recommending the legalisation of homosexual behaviour between consenting adults in private. Devlin's main point was to argue that this specific theoretical conclusion did not stand up.
Mill of course believed that harmless behaviour was not the law's business, whether or not it could be styled immoral, and Hart's purpose in challenging Devlin was to reassert a modified version of Mill's view. In Devlin's view a society is in part constituted by its morality and it therefore has a right to defend itself against any attack on that morality.
The law must do what it has to do to exact the price of society, which is the protection of the morality of that society. He believed that the invisible bonds of common thought in a given society are not the same in different societies. Some societies abhor polygamy for example and others find it a worthy form of social organisation.
In different ways both monogamy and polygamy can partly constitute the invisible bonds of common thought in different societies. For Devlin, it follows that in one society the law can be used to enforce monogamy against polygamy and in the other it can be used to enforce polygamy against monogamy, should the latter threaten the former in either case.
But this is merely a contingent truth and if our houses were built differently the content of the law to be enforced could legitimately be the opposite of what it is. Morality is, for Devlin, conventional. The relevant sense of morality for Devlin is relative. In the late s in English society, it was at least arguable in Devlin's view that there was enough intolerance, indignation and disgust to justify the criminal law prohibition against homosexual behaviour between consenting adults.
Presumably, if alive today, Devlin would argue on the same premises for the illegitimacy of the criminalisation of homosexual behaviour between consenting adults. In English society today none of the mainstream political parties takes the view of homosexuality Devlin thought widespread in the s, or, more pertinently in Devlinite terms, believes that there are votes to be gained from advocating such a view.
The Limits of Law
Patrick Devlin, Baron Devlin
The Enforcement of Morals