Over the past few weeks, with Parliament exercised over new laws about who can enter and leave our country, and what might now happen to them as they do, I have been thinking about an old debate about rules and their basis. Indeed, in my first year as a University teacher, 42 years ago, I delivered a lecture to my first-year students on the subject, mostly to their bemusement, I think.
The issue is about whether a law (rule) is a guideline that you should follow, or a commandment that you must follow (or else). In the world of road safety, which I know quite well, there is a widespread community view that it’s OK to drive a little faster than the posted speed limit. Those who think that way would probably argue that it’s OK in their case because they’re good drivers, and not hoons. They have good sense, they say, and wouldn’t drive too fast where it would be silly to do so. Descartes says somewhere that good sense is one of those attributes that is very widely distributed, because everyone you encounter seems to think they have a lot of it.
One position on all this is that a guideline is enough for a responsible person, who will responsibly see the point and act accordingly. The other position says that if the guideline is not backed up by sanctions then in time people will follow it or not according to how they feel at the time — in short, it won’t do much guiding.
And that takes one quickly to the famous debate between Professor Hart and Lord Devlin, both of whom I heard (separately) during a year in Oxford in the mid-1960s. Their debate was in connection with the publication of the Wolfenden Report, on whether or not homosexual acts between consenting adults should be decriminalised. It occurred through the publication of books, Devlin’s in 1959 and Hart’s in 1962, and it has gone on ever since.
Lord Devlin was a judge, and a very senior one, while Hart was arguably one of the great legal philosophers of the 20th century. And the positions they took apply much more widely than simply to homosexual acts.
Devlin argued like this: human beings need to live in a society, because it offers very many benefits, and societies have their own cultures, morals, political ideas and so on. If you belong to that society, these ideas are part of you. Anything that threatens something that is part of you is a threat to society, and needs to be dealt with. Society has laws, rules, to protect itself from danger, and an established morality is an important part of any society. So the established morality has to be protected.
How do we know any of this? For Devlin, it is easy. There is the ‘reasonable man’, who simply knows in his being what is right — he doesn’t have to think it through. If he (or she, but Devlin used the masculine) is angry or disgusted about some act, then he or she is reflecting the society’s moral code, and that act is a form of harm, and need to be put down.
Hart wonders about what exactly that harm is, and follows J. S. Mill in doing so: if an act does no one any harm, why should we proscribe it, even if some in the community feel offended by it? He argues further that it is not enough to rely on the ‘reasonable man’ when we consider laws. Lawmaking requires thought and argument, otherwise we get bad laws. He also argued that Devlin can’t really show that a deviation from current public morality threatens the fabric of society, or even that you can equate society and morality.
My summaries here have been awfully brief, for both men were subtle and clever in their argument, but they will do for such a short essay. If you’ve read thus far, you will see that these ideas run through our public life today. So much of the argument about whether or not Muslim women should wear this or that aspect of dress draws from Devlin’s concept of a shared morality, while my little essay on Section 18c, a little while ago, borrows from Hart’s notion of ‘offence’ being insufficient reason to ban something.
Having said all that, I wonder whether or not our own society has become so diverse that it may now begin to lack much of a shared morality anyway. And I wonder whether that is a good thing or a bad thing. Not that I can do much about it.
Both Hart and Devlin wrote a lot, and towards the end of his life Devlin seems to have accepted rather more of the Hart perspective than had been the case in 1954, the year of the Wolfenden Committee. Both are interesting people to read about, while their debate has become an item for students studying law. You can even watch a real debate on the subject, this time with debaters from Monash University.
A final thought: ignorance of the law is not a defence. Yet our Parliaments pass thousands of new laws and regulations every year, and while not every one of them applies to each person, there is simply no way that you and I can be aware of every law that does apply in our cases. And that is why, in part at least, we have lawyers, accountants, travel agents and the like, who are expected to know what the law is, and can advise us properly. It wouldn’t hurt if all our Parliaments had a holiday from law-making, but that would only scratch the surface. We have vastly more law than we know what to do with.