The Judge and Wolfenden
Law and Opinion in England in the Twentieth Century. Edited by Morris Ginsberg. (Stevens, f2 2s.)
THE views of judges non ex cathedra are generally revealing, and anything written by Mr. Justice Devlin deserves the closest attention; his lecture to the British Academy is timely also in the context of a revived interest in theories of natural law. He is concerned to re-emphasise the intimate con- nection between law, particularly criminal law, and morality, and the dependence of the former upon the latter not only for its substance, but for its enforceability. The agnostic may not agree with his closing
statement that . the law must base itself on Christian morals and to the limit of its ability enforce them . . . for the compelling reason that without the help of Christian teaching the law will fail'; nor the Christian with his view that 'For the purposes of the limited entry which the law makes into the field of morals, there is no difference ... be- tween Christian morals and those which every right-minded member of society is ex- pected to hold'. But the thesis as a whole probably commands general acceptance.
The peculiarity of the lecture is that its jumping-off point is an assault on the views expressed in the Wolfenden report as to the function of law, particularly illustrated by the Committee's decision that homosexual behaviour between consenting adults should cease to be a crime as being essentially a matter of 'private morality'. Sir Patrick seems to have discerned in the report 'a com- plete separation of crime from sip', and he says that, as a judge administering the criminal law, he would feel 'handicapped in my task if I thought that I was addressing an audience which had no sense of sin or which thought of crime as something quite different'. But it is clear from the report itself that the Committee regarded both homo- sexuality (para. 26) and prostitution (para. 226) as immoral; and the very term to which Sir Patrick objects, 'private morality', im- plies a public morality which condemns certain acts as both criminal and sinful.
Later in his lecture, Sir Patrick appears to recognise this, but he then reproves the Committee for attempting to define the special circumstances which, they say, must be shown before the law is invoked. Ac- cording to him, such an attempt is bound to break down; the law is prima facie con- cerned with morality in general, and its interferences in any particular instance must be on an ad hoc basis. He even gives a list of crimes which involve no offence against order, decency and the protection of citizens and are outlawed only as a matter of moral principle: euthanasia, suicide, attempted suicide and suicide pacts, duelling, abortion, incest between brother and sister. But apart from the doubtful case of suicide (and attempted suicide is not a crime in Scotland) these acts are all potentially social offences in that they are open to 'abuse' of a kind to which (for instance) homosexuality between consenting adults is not subject.
In his exposition of a law interested in morality as a whole Sir Patrick says that 'Societies disintegrate ... when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to pre- serve its moral code as it does to preserve its government and other essential institu- tions'. And 'it must be remembered ... that although there is much immorality that is not punished by the law, there is none that is condoned by the law. The law will not allow its processes to be used by those en- gaged in immorality of any sort'. Even if this were confined to sexual immorality it would not be correct — a mistress has been held entitled to legal rights derived from her position as such; but what legal processes are forbidden to those engaged in the other six deadly sins? And what measures arc taken to prevent the disintegration of society as the result, say, of pride or sloth?
Sir Patrick appears to put-do St. Thomas himself, who defined law as 'an ordinance of reason for the common good', a principle duly embodied in Wolfenden. 'We are not charged to enter into matters of private moral conduct except in so far as they directly affect the public good.' (para. 12). The proper sphere of criminal law is in fact so circumscribed that an attempt to define the principle which should bring it into play is almost inevitable, and indeed Sir Patrick himself advances 'general statements about how in our society the balance ought to be struck'—with, probably, not dissimilar re- sults from the Committee, although it may be doubted whether 'abhorrence' by itself, however genuine, should really justify the outlawing of any act. The outsider will probably feel that there is a much larger area of agreement between the judge and the Wolfenden Committee than the lecture appears to acknowledge.
Perhaps it is a pity that all these distin. guished persons who are concerned with the relationship between law and morals should spend their time investigating the small number of sins which may or may not be criminal, instead of the large and growing number of crimes which manifestly are not sinful; the latter are far more insidious and destructive of 'public morality'. However scornful the positivist may be of the dictum Lex injusta non est lex, the ordinary citizen feels it in his bones. Sir Patrick only men- tions this side of criminal law in the context of rules designed to achieve uniformity and convenience. But although anyone can see why driving on the right-hand side of the road has to be a crime, it needs an altogether subtler intellect to appreciate why penalties should be imposed on digging coal, or selling milk at the farm, or earning more than £3 a week as an old-age pensioner, let alone to discern what has happened to morality among the amazing inequities of tax law. It is not surprising that 'natural law' is again in vogue.
Professor Ginsberg's compendium, al- though sixteen times as long, provokes less thought than Mr. Justice Devlin's pamphlet. It is an ambitious attempt by seventeen eminent lecturers to follow Dicey, especially the introduction to his second edition be- wailing the growing forces of 'Collectivism'. But although the contributors are most in- formative and have thought a lot about Collectivism, it is somehow rather difficult to hear what they are saying. Perhaps a single mind, even if less erudite and more opinionated, would have been a more ap- propriate successor to Dicey.
ROBERT LINDLEY
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