CHAPTER 5: THE VICISSITUDES OF THE PRACTICE OF CONSENSUAL
5.3 The Wolfenden Report and the Hart-Devlin Debate: Precursors for the Reflections of
5.3.2 The Essence of the Hart-Devlin Debate: Broadening the Fold for the Interpretation of
The findings of the Wolfenden Report enjoyed no respite as the clash of ideologies between Devlin and Hart ensued in its wake. The debate had scorched through the jurisprudential landscape of the criminal law and its ties with the concept of societal morality. The question at the heart of the debate was as follows: should the criminal law consider immoral actions as a
909 Ibid at 24 at para 61.
144 criminal offence?910 Thus, where the criminal law sees fit to criminalise consensual immoral conduct between adults, this would serve as a flagship for the existence of victimless crimes within a legal system. The exploration of the position of Patrick Devlin,911 and his disregard for the findings of the Wolfenden Report, will be shed by virtue of his key submissions within the debate. Contrasting Devlin’s perspective, the views of H.L.A Hart will be deciphered in light of his key submissions that support the entrenchment of personal liberty and freedom;
rights that cannot be influenced by a unanimous moral code.912
Devlin, and his profound affinity for the interlocking of law and morals, proposed that it is in the coexistence of law and morality that the protection of society will occur. To Devlin, the influence of a commonsocietal morality must coax the criminal law to prosecute behaviour that would cause the moral deterioration of the society.913 Further, Devlin submits that the intangible bondsof common morality and belief are polymerised to form a unified system of morality that is understood by the ‘feelings’ of a reasonable man within society.914 This outlook proposes that morality exists within a model that is collectively shared by the members of society as a paragon value system, based on its intrinsic unanimity. Even though cognisance was given to Mill’s Harm Principle, Devlin argues that such is one of many guides within the labyrinth of jurisprudence that may be considered in light of the findings of The Wolfenden Report.915
Devlin further submits that the safeguarding of morality will be hinged upon the determination of whether immoral conduct has occurred in the objective analysis of a reasonable man within the society. This will be interpreted by the assessment of the impact of the harm from the
‘immoral behaviour’ and its infringement upon the collective morality of society,916 perceived purely from the feelings of a reasonable man.917 Devlin is of the belief that even private acts of immorality are sufficient to cause the withering of public morality and these must be the recipient of the criminal law’s sanctions. Thus, Devlin proposes that the value of societal
910 G. Dworkin ‘Devlin was right: Law and the enforcement of morality’ (1999) 40 William and Mary Law Review 927.
911 Patrick Arthur Devlin (1905 – 1992).
912 Herbert Lionel Adolphus Hart (1907 – 1992).
913 M.K. Radebe “The Unconstitutional Criminalisation of Adult Sex Work" (Masters thesis, University of Pretoria, 2013), 11.
914 J.H. Wade "Morals and the Enforcement of Values: An Analysis of the Hart-Devlin Debate" (Masters thesis, University of British Columbia, 1971), 3.
915 Ibid at 10.
916 Dworkin op cit note 910 above at 931.
917 Radebe op cit note 913 above at 11.
145 morality endures as an instrument that may be applied practically by the imposition of a criminal sanction, in both the public and private spheres.918 This must be considered objectively by the criminal law and the regulation of immoral behaviour to be assessed on the facts of each individual dispute. Therefore, Devlin argues that harm from immoral conduct is sufficient to infringe the collective safety of society and does not exist as an isolated harm inflicted between individuals. Society is allegorised as a complete entity, one that is deserving of a moralistic framework that calls for the epitome of legal protection.
Hart, in his contrasting argument, propelled the perspective of Mill’s Harm Principle;919 and compartmentalised the dynamic of morality within society into ‘positive morality’ and ‘critical morality’.920 ‘Positive morality’ correlates to the general affinity and acceptance of morality within an identifiable social group.921 ‘Critical morality’, however, serves as a definitive test to determine the morality of an appropriate social institution and the nature of ‘positive morality’
within it.922 Hart thus implements the ethos of ‘critical morality’ in his submissions within the debate.
Devlin had attempted to show the correlation between law and morality, calling for the importance of moral rules and desired behaviour from members of society,923 in order to preserve societal morality. The stance of Hart’s position differs, as it seeks to characterise the conflict between the concepts of law and morality whilst advocating for the freedom of individual human liberty within society. This sense of individualism, or analogous autonomy, is remote from the collective morality that is perceived by the feelings of a reasonable man; as was submitted by Devlin.924 To Hart, the law may not instil the enforcement of a ‘greater’
morality over the actions of individuals, unless the actions exist as a source of harm to others.925 Devlin’s argument had stressed that a reasonable man is capable of understanding social morality by virtue of intrinsic moral justice, yet Hart is not willing to assume this jingoistic possibility as a quality that is inherent to all people.926
918 Dworkin ‘Devlin was right: Law and the enforcement of morality’ (1999) 932.
919 Mill On Liberty.
920 Y. Caron ‘The legal enforcement of morals and the so-called Hart-Devlin controversy’ (1969) 15 McGill Law Journal 9, 10.
921 Ibid.
922 Ibid at 27.
923 Ibid at 21.
924 Ibid.
925 Wade "Morals and the Enforcement of Values: An Analysis of the Hart-Devlin Debate" (1971) 7.
926 Ibid at 12.
146 To Hart, perceived ‘immoral’ private acts, which may be practised by a few individuals of society, should not suffer the unanimous scrutiny of an overarching social model of morality.
This submission is a manifestation of the isolation demanded between law and morality and the proposed deviation of the monopoly held by the viewpoints of the majority, sufficient to curtail the fundamental liberties of society as a whole. Hart argues that Devlin’s cumulative
‘feelings test’,927 alleged to be intrinsic to a reasonable man within society, must be abrogated based on its disjunctive limitations to the individual liberties of all humans within society.
Therefore, Hart asserts that the paternalism of morality is unjustified in the application of the law unless the action in dispute can be proven to cause an identifiable harm to society.
This reflects Hart’s primary argument and echoes the findings of The Wolfenden Report in its breakdown of the victimless crimes of homosexuality and prostitution. Further, Hart expresses his test for harm that accounts for a physical manifestation of the harm from the perceived immoral conduct.928 If no physical manifestation of harm occurs from the alleged ‘immoral conduct’, Hart would argue that such conduct is not deserving of State criminal sanction.
Therefore, it is in the infringement of the rights of the State that will allow for a primary entry point for the criminal law’s talons, and not the collective influence of societal morality. Hart is clearly a champion of individual freedom and liberty, deriving heavily from the vestiges of legal paternalism. Hart remains a jurist who is unconvinced that a single immoral act, committed in the private confines of adult interaction, would cause the fall of society as a whole.
In conclusion, Hart’s submissions elate individual human liberty, self-determination, autonomy, and freedom. It is within these concepts that the criminal law would find an appropriate guide when interpreting a victimless crime that has occurred within a contemporary legal system. This, however, is not to say that Devlin stands as the antagonist of individual freedom and liberty.929 To the contrary, Devlin’s argument wishes to maintain the freedom of society as a whole by the utmost safeguarding of societal morality. At its core, Hart understands that morality is a hereditary phenomenon within a civilised society, yet believes that the principle of individual liberty and freedom must be entrenched to shape and guide such morality.
927 Ibid.
928 Ibid at 24.
929 Ibid at 32.
147 The position of the Wolfenden Report had amassed a throne of jurisprudential strides for the assessment of victimless crimes. The clash of ideologies between Hart and Devlin exists within a storm of differing theories in the positioning of the criminal law and its correlation with perceived ‘immoral’ private activities. It is submitted that the debate is a feast of abstract morals in conflict with individualism, yet one that should not allow for the invitation of the criminal law into the private spheres of adult interaction. The Hart-Devlin debate proves that the criminal law’s bond with morality is a dance with the prerogative of mitigating harm within society. Therefore, progressive winds of legislative development allowed for the detachment of the criminal law from the perceived ‘immoral’ conduct of homosexuality and prostitution within the English legal sphere. However, this proves to be a glacial dream for the complete rooting out of victimless crimes in society, as such will be dependent on the nature of the crime and its rippling effects of harm.
5.4 Victimless Crimes from the South African Perspective: Reconciling Morality with