The Enforcement of Morals

by Patrick, Baron Devlin

Are morals always relative? Are private actions—among consenting adults— always beyond the law? Or are there some behaviors which so weaken a society that common beliefs about right and wrong must be enforced to protect the common good? In opposing the decriminalization of private acts of homosexuality in Britain, Patrick Devlin maintained that not only is it reasonable to allow popular morality to influence lawmaking, it is imperative: “ . . . For a society is not something that is kept together physically; it is held by the invisible bonds of common thought.” Today, as divisive issues such as same-sex marriage and “don’t ask, don’t tell” confront our legislative, judicial, and executive branches, the views expressed by Devlin in The Enforcement of Morals resonate and reverberate anew. Patrick Devlin (1905–1992) studied history and law at Cambridge University and became a successful lawyer.

Genres: Philosophy, Law, Politics, Nonfiction

153 pages, Paperback

First published October 1, 1987

About the author

Patrick Arthur Devlin, Baron Devlin, PC was a British lawyer, judge and jurist. He worked as junior barrister for William Jowitt while Jowitt was Attorney-General, and by the late 1930s he had become a successful commercial lawyer. During the Second World War he worked for various ministries of the UK Government, and in 1948 Jowitt (by then Lord Chancellor) made Devlin (then aged 42) a High Court judge, the second-youngest such appointment in the 20th century. Devlin was knighted later that year.
In 1960, Devlin was made a Lord Justice of Appeal, and the following year he became a Law Lord and life peer as Baron Devlin, of West Wick in the County of Wiltshire.
After retirement, Baron Devlin was a judge on the Administrative Tribunal of the International Labour Organization until 1986. He was also chairman of the Press Council from 1964–69, and High Steward of Cambridge University from 1966 until 1991. He also spent time writing about law and history, especially the interaction of law with moral philosophy, and the importance of juries.

Reviews

[Rick · Rating 4 out of 5]

More descriptive than prescriptive, "The Enforcement of Morals" is a good practical assessment of how societies make, change, and apply laws, and how - in the secular world - the words of Oliver Wendell Holmes, Jr. are more true than not: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." (The Common Law, Lecture One )

[Steven]

This essay is a great proof against the separation of church and state, as well as all Western Christianity. You can't make the necessary moves to ensure decency under Protestantism and alleged neutrality. You have too much nonsense junking up the minds of people that has to be stepped around to afford state enacted punitive corrective action.

Hypothetically, you could use nation-building tactics to herd cats in your union of egoists, but that consensus rigging has no legitimating basis outside of midwit prattle like "social contract" theory (/social proofing).

Symphonia is the only defensible societal program to address the issues since the Catholic confessional state concept is basically abandoned. Even if it still had purchase, it'd still be a distant second given the consolidation of power in their ecclesiology, which stands as a barrier to consistently delivering the proper functionality. The decentralized "flatter" structure of the Orthodox Church prevents such easy capture. In some sense it's more of a 1/n investment strategy vs strictly investing in real estate.

Lastly, the concept of Sobornost would've dealt with 90% of the issues addressed in this essay, but the individualism of the author - and the expected audience - don't permit such concepts.

[Nat · Rating 3 out of 5]

Definitely an academic-type read. He goes through considerations for when creating a new law, which was interesting to read about. Overall, it was an interesting discussion on how morality ties in with the law, how this ties in with an individual's personal freedoms and on points for how interwoven morality and law should be.

[Jordan Scroggins · Rating 3 out of 5]

Like others have said, this is a very descriptive text. The takes Devlin does express feel outdated and difficult to come around to.

[Trisha Mukartihal]

hard to rate because it was an academic read (especially because devlin is very outdated), but super interesting takes

[Vagabond of Letters, DLitt · Rating 4 out of 5]

***3/4

[Adrian Buck · Rating 5 out of 5]

"So in a democracy the existing laws contain the best and most comprehensive statement of contemporary social reality. They are not a perfect statement. There is always some unrepealed junk that nobody will make the effort to get rid of. Moreover, of its nature the law cannot be immediately responsive to new developments and may need as a corrective the observation of the man up aloft who gauges the strength and direction of the winds of change...until the point is reached when there is strong pressure against a particular law, the ideas of reformers, however well and articulately expressed, are not contemporary sociable reality but wishful thinking about the sort of society they would like to see; and if and when they become contemporary, it is improbable that they take the exact form of the wishful thoughts." pg 126

As a judge, I suppose Patrick Devlin saw himself as a 'man up aloft'. As such was able to come out in support of the decriminalisation of homosexuality, having argued so cogently against it in this book. Devlin's view of the relationship between the law and popular morality had not changed, his view of popular morality had. 'The Enforcement of Morals' is the most compelling thing I have read in jurisprudence since Law's Empire, and it addresses an important weakness in Dworkin's argument. That argument is that Law, or at least a legal system based on precedent is an autonomous system that works over time to make itself rational. The autonomy of the law thus renders us its subjects. The view fails to take into account revolution, where Law's subjects violently change the law to better suit contemporary social reality. Devlin's linkage between popular morality and criminal law recognises that for law to be accepted as such, it must be supported by a important element of popular morality.

There are at least two examples where this process is at work today: implementing Brexit in the UK, and restrictions on Islamic dress in France. Rational, liberal arguments about the sovereignty of Parliament in the UK, and the sovereignty of the individual in France seem confused and contradictory when confronted by intense expressions of popular morality. As a Conservative with little sense of conviction on either matter, my clearest hope is that the men and women up aloft gauge correctly, avoid revolution and preserve Law's Empire.

[Emily Kidd · Rating 4 out of 5]

Pretty good, read as the second book for my intro into poli sci class under Tony Litherland. See seven page book review for extended comments.