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Government Enforcement of Morality : a Critical Analysis of the Devlin-Hart Controversy. Peter August Bittlinger University of Massachusetts Amherst

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Government Enforcement of Morality : a Critical Analysis of the Devlin-Hart Controversy. Peter August Bittlinger University of Massachusetts Amherst University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations 1896 - February 2014 1-1-1975 Government enforcement of morality : a critical analysis of the Devlin-Hart controversy. Peter August Bittlinger University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_1 Recommended Citation Bittlinger, Peter August, "Government enforcement of morality : a critical analysis of the Devlin-Hart controversy." (1975). Doctoral Dissertations 1896 - February 2014. 1909. https://scholarworks.umass.edu/dissertations_1/1909 This Open Access Dissertation is brought to you for free and open access by ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations 1896 - February 2014 by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. GOVERNMENT ENFORCEMENT OF MORALITY A CRITICAL ANALYSIS OF THE DEVLIN-HART CONTROVERSY A Dissertation Presented By PETER AUGUST BITTLINGER Submitted to the Graduate School of the University of Massachusetts in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY December 1975 Political Science Peter August Bittlinger I976 All Rights Reserved GOVERNMENT ENFORCEMENT OF MORALITY A CRITICAL ANALYSIS OF THE DEVLIN-HART CONTROVERSY A Dissertation Presented By PETER AUGUST BITTLINGER Approved as to style and content by: Felix E. Grppenheim, Chairman •Loren P. Beth, Member Lawrence Foster, Member ( /^IA Loren P. Beth, Head Department of Political Science 18 December 1975 — iv ACKNOWLEDGMENTS To my parents, Dolores Catherine and Elmer Joseph, whose faith in and encouragement of my work have never flagged, I wish to dedicate this study as an expression of my love and gratitude. Two dear friends, Fran Johnson and Shulamith Oppenheim, should be recognized for the countless ways in which I was permitted to draw from their affection and strengths the sustenance (and prodding) needed to "finish that paper." I am thankful as well to Loren Beth and Gerard Braunthal who, in their role— at different times as Graduate Advisor, made it possible for me to complete the Ph.D. requirements. The members of my dissertation committee, both individually and collectively, are appreciated for the experience of a stimulating oral defense as well as for their careful reading and criticisms of the manuscript. A special word of gratitude is owed to my dissertation advisor and friend, Felix Oppenheim, not only for the concern and diligence with which he directed my writing, but also for the many suggestions', as to both style and substance, which have given to this essay whatever philosophical worth and literary grace it possesses. P. A. B. Amherst, Massachusetts 1 January 1976 ABSTRACT Government Enforcement of Morality A Critical Analysis of the Devlin-Hart Controversy (December 1975) Peter August Bittlinger, B.S., Canisius College M.A., Ph.D., University of Massachusetts Directed by: Professor Felix E. Oppenheim Is it justifiable to use the criminal law to pro- hibit and to punish conduct merely because it is generally thought to be morally wrong? The recent controversy between Patrick Devlin and H. L. A. Hart has been waged over this normative question. This study critically analyzes their arguments which are themselves comprised of complex combina- tions of normative views, factual assumptions, and philoso- phical theories. I approach these diverse elements system- atically by treating them independently. A three-fold classification of theory-types is employed. First, I deal with Devlin's and Hart's normative theories, i.e., their generalizations about the desirable extent and limits of' penal legislation and of individual liberty. Devlin is an advocate of legal moralism, the view that certain kinds of conduct should be criminalized simply because they violate public morality, and of legal paternal- ism, the view that the law should protect persons from the harmful consequences of their own actions. He offers vi several reasons, all of which I criticize, for holding these views. Hart, on the other hand, opposes legal moral! sm—but only with respect to the consensual sexual practices of adults in private; he justifies a limited form of legal mor- alism for the sake of protecting moral and religious senti- ments from offensive public activities, and he adopts a limited (and confused) form of legal paternalism. I agree with Hart, against Devlin, that penal sanctions for "mere immorality" are unjustifiable, but I criticize his views on public offense and paternalism. Second, I examine the factual assumptions underlying these normative theories, i.e., Devlin's and Hart's empiri- cal generalizations about political society and human nature. Devlin's assumptions appear unfounded. Although some of Hart's fare little better, I agree with him, against Devlin, that neither society's survival nor the individual's well-being requires a governmental policy of legal moralism. Third, I analyze Devlin's and Hart's positions on the philosophical question whether certain intrinsic moral principles can be shown to be objectively true independently of anyone's subjective value commitments. Devlin explicitly propounds the value-cognitivistic view that the moral judg- ments of a given social community are objectively valid; his reasons belong to the naturalistic and intuitionistic meta- ethical types. I agree with Hart's implicitly value- noncognitivistic view which denies that ultimate moral prin- vii ciples can be objectively validated. Finally, I review the present state of the contro- versy by analyzing recent views on the issues of public offense, paternalism, and so-called 1 'victimless crimes . Against both Devlin and Hart (and some others), I agree with Michael Bayles and Hugo Bedau that public activities should not be criminalized for their mere off ensiveness to others, and that the penal code is an inappropriate means to pre- venting self- harm. I also agree with Bedau that the concept of 'victimless crimes' is both unnecessary to and sometimes incapable of justifying proposals to decriminalize certain activities. With Bayles and Bedau, I defend J. S. Mill's harm to others principle as a criterion of justifiable criminal legislation. viii TABLE OF CONTENTS Chapter I. THE DEVLIN-HART CONTROVERSY . A. History of the Controversy B. Plan of Analysis .... II. NORMATIVE THEORIES--! .... A. Theories of Political Ethics 11 B. The Controversy a Normative One 14 C. Devlin's Normative Theories 20 1. Preservation of society . 22 2. Preservation of essential institutions . 34 (a) Christian morality (b) Marriage (c) Government 3. Preservation of positive morality ... 44 (a) Gross immorality (b) Promotion of virtue (c) Moral populism (d) Democracy and legal moralism 4. Objective validity of positive morality 63 5 • Summary 63 III. NORMATIVE THE0RIES--II 67 D. Hart's Normative Theories 67 1. Utilitarian theory 70 (a) Prevention of misery and suffering (b) Efficiency and practicality of enforcement 2. Nonutilitarian principles 79 (a) Equality of legal treatment (b.) Legal consistency and predictability (c) Intrinsic valuation of freedom (d) Limited democracy and libertarian! sm 3. Principles justifying legal intervention 95 (a) Prevention of harm to others (b) Prevention of public offense (c) Legal paternalism 4. Summary 120 E. Comparison of Devlin and Hart ........ 124 F. Conclusion ..... 126 ix Chapter IV. FACTUAL ASSUMPTIONS 129 A. Devlin's Factual Assumptions 131 1. The nature of political '. society . ! ! 131 (a) Tangible harm (b) Intangible harm (c) The delegate role of legislators 2. The nature of man 155 B. Hart's Factual Assumptions ! ! ! I59 1\ The nature of political society . 159 2. The nature of man 168 C. Conclusion § V. METAETHI CAL CONSIDERATIONS I75 A. Devlin's Metaethical Views I78 1. Naturalism , 179 2. Intuitionism I87 B. Hart's Metaethical Views I93 C. Conclusion 195 VI. PRESENT STATE OF THE CONTROVERSY I96 A. Public Offense I97 B. Legal Paternalism 208 C. 'Victimless Crimes' 21^ D. Conclusion 217 BIBLIOGRAPHY 223 X XVIII Oh who is that young sinner with the handcuffs on his wrists? And what has he been after that they groan and shake their fists? And wherefore is he wearing such a conscience-stricken air? Oh they're taking him to prison for the colour of his hair. •Tis a shame to human nature, such a head of hair as his; In the good old time 'twas hanging for the colour that it is; Though hanging isn't bad enough and flaying would be fair For the nameless and abominable colour of his hair. Oh a deal of pains he's taken and a pretty price he's paid To hide his poll or dye it of a mentionable shade; But they've pulled the beggar's hat off for the world to see and stare, And they're haling him to justice for the colour of his hair. Now 'tis oakum for his fingers and the treadmill for his feet And the quarry-gang on Portland in the cold and in the heat, And between his spells of labour in the time he has to spare He can curse the God that made him for the colour of his hair. A. E. Housman • 1 CHAPTER I THE DEVLIN-HART CONTROVERSY What part should the fact that most members of a given public think an activity to be "immoral" play in the decision whether to make it a criminal offense? If the pro- hibited practice is strenuously condemned by public opinion, should this fact be regarded as conclusive of the issue whether a particular crime ought to be retained? Does the fact that some criminal laws punish certain practices for their "immorality" preclude moral criticism of those stat- utes? Such questions go back at least as far as Sopho- cles' s Antigone , and thus are as old as the history of poli- tical thought itself. The desirable relationship between public morality and positive law is a perennial political issue which was last ventilated in the mid-nineteenth cen- tury controversy between John Stuart Mill and James i Fitzjames Stephen.
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