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Law, Liberty and Indecency

Published online by Cambridge University Press:  25 February 2009

David A. Conway
David A. Conway
Affiliation:
University of Missouri-St Louis
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Extract

The distinction between private immorality and public indecency plays a significant and perhaps a crucial role in H. L. A. Hart's argument in Law, Liberty, and Morality. This distinction, and the uses to which he puts it, have, however, been largely overshadowed in the ‘debate’ between Professor Hart and Lord Devlin which has centred around such ‘great’ questions as whether a shared morality is necessary for a society. I shall argue that Hart's position, in so far as it is based on that distinction, is quite untenable, and that even if it were to be a possible position, it would none the less be incompatible with the sort of ‘libertarian’ view of society expressed by John Stuart Mill, whose ‘spirit’, at least, Hart believes himself to be defending.

Type
Articles
Information
Philosophy , Volume 49 , Issue 188 , April 1974 , pp. 135 - 147
Copyright
Copyright © The Royal Institute of Philosophy 1974

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References

1 Hart, H. L. A., Law, Liberty, and Morality (New York: Random House, 1966)Google Scholar. Hereafter cited as ‘Hart’.

2 Devlin, Patrick, The Enforcement of Morals (London: Oxford University Press, 1965), p. 120.Google Scholar

3 John Wilson is an exception; as I understand him, he does accept the ‘heroic’ alternative. (Logic and Sexual Morality (Baltimore: Penguin Books, 1965), Ch. 6.)Google Scholar

4 Hart, , p. 45.Google Scholar

5 Mill, John Stuart, On Liberty (New York: Liberal Arts Press, 1956), p. 119. Hereafter cited as ‘Mill’.Google Scholar

6 The passage on p. 119 is, however, patently inconsistent with Mill's over-all position in On Liberty (see section V of this paper). Also, on pp. 77 and 102 he explicitly contrasts offence with harm in order to deny that offence is sufficient ground for prohibiting an action. Henceforth, I shall not consider the passage on p. 119 as being part of ‘Mill's position’.

7 Hart, , pp. 45–46.Google Scholar

8 This claim may be made on a number of grounds, not just on the ground that any action may offend others. For a brief survey of some objections to Mill along these lines, see Rees, J. C., ‘A Re-reading of Mill on Liberty,’ in Radcliff, Peter (ed.), Limits of Liberty (Belmont: Wadsworth Publishing Co., 1966), pp. 91–93.Google Scholar

9 Hart, , p. 47.Google Scholar

10 Hart, , p. 17.Google Scholar

11 Hart, , p. 48Google Scholar. The omitted words here are ‘if he can’. This appears to indicate that Hart does not attach much importance to the claim that ‘one is left at liberty to do the same thing in private’. Also, on p. 46, he seems to contrast this way of making the public-private distinction with his own way W doing so. If, however, he really does not intend to be seriously urging this rationale for the public-private distinction, I fail to see what morally relevant rationale he could possibly have in mind.

12 Hart, , p. 43.Google Scholar

13 Hart, , pp. 40–41.Google Scholar

14 Devlin, , op. cit., p. 138Google Scholar. I am not nearly as certain as Devlin seems to be about what Mill does intend.

15 Hart, , pp. 30–34.Google Scholar

16 It may be objected that the person offended at the mere knowledge of homosexuals in the community is the victim of his own psyche rather than of any other person, that his offence is ‘his own fault’, rather than the fault of others. But we can also say to a person offended by the public spectacle of a nude person that it is his own fault that he finds this offensive.

17 Hart, , p. 47 (quoted in context, p. 138 above).Google Scholar

18 Cf. Mill, , pp. 106–107Google Scholar. My example differs from his only in that in mine it is a black man who gives the ‘appearance of a more showy or costly style of living than [others] can hope to rival’.

19 Mill, , p. 106.Google Scholar

20 See Section III above.

21 For this and other practical ‘difficulties and evils’ in attempting to enforce laws against private immorality, see Schwartz, Louis B., ‘Morals and the Model Penal Code,’ in Wasserstrom, Richard A., Morality and the Law (Belmont: Wadsworth Publishing Co., 1971), p. 95.Google Scholar

22 With the exception of the notorious passage on p. 119.

23 Mill, passim.

24 Mill, , p. 119.Google Scholar

25 Mill, , pp. 105–106.Google Scholar

26 Mill, , pp. 111–113.Google Scholar

27 Mill, , p. 79.Google Scholar

28 Cf. Wilson, , op. cit., p. 158Google Scholar. ‘Indecent exposure is analogous to wearing pink shoes or having blue hair… If somebody wanted a law against pink shoes or blue hair, on the grounds that they “interfered” with his Sunday walk, we should tell him to look the other way or forget about it; and it is significant that we are not prepared to take this line with “indecent exposure”.’

29 There are many problems which have nothing to do with public indecency which arise for the ‘extreme libertarian’. Among the more obvious is the possibility of adopting a principle that would prohibit the regulation of such obnoxious sights as automobile ‘graveyards’, odours which may flow from industrial complexes, and the sounds which come from one's neighbour practising his trumpet at three a.m. My inclination is to think that none of these creates an insuperable problem for the ‘extreme libertarian’, but I am not now prepared to argue this. And even if I were, it would not be appropriate to do so within the confines of the present paper, the point of which is not that the ‘extreme libertarian’ is right, but that Hart is wrong.

30 I should like to thank my colleagues James Doyle, Robert Gordon, and, particularly, Henry Shapiro for comments on earlier drafts of this paper.