Wolfenden, Devlin and Hart

In one line

A committee proposed that private immorality is not the law's business, a judge answered that a society is held together by a shared morality which it may defend by the criminal law, and a jurist replied that the argument confuses the enforcement of morality with the prevention of harm and rests on an unproved claim about disintegration.

Why it is a sequence and not three views

The three positions were produced in order, and each answers the one before. An answer that sets them out as three independent opinions loses the argument, because the interesting content is in the replies. The order is: the Report, then Devlin's objection to it, then Hart's objection to Devlin.

One: the Wolfenden Report

The Committee on Homosexual Offences and Prostitution reported in the United Kingdom in the late 1950s. Its recommendation on the criminal law is the proposition the rest of the debate is about.

The function of the criminal law, on its view, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly the vulnerable. It is not the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out those purposes.

From that the Committee drew the conclusion that there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business.

Two features of that formulation matter.

It is a limit on function, not a claim about morality. The Committee did not say the conduct was right. It said the criminal law is not the instrument for it.

And it leaves a great deal in. Public order, decency, offensiveness, injury, exploitation and the protection of the vulnerable are all retained as proper concerns.

Two: Devlin's answer

Lord Devlin's reply is not, as students often state it, that immorality should be punished because it is immoral. It is an argument about what holds a society together, and it has four steps.

Step one. A society is not merely a collection of individuals. It is held together by a shared political and moral structure, a community of ideas about how its members should behave.

Step two. That shared morality is part of the bonds that hold the society together. It is as much a part of them as its government.

Step three. A society may therefore defend it. If a society is entitled to preserve its existence, it is entitled to use the law to preserve the morality that is part of its existence, and there can be no theoretical limit to that power in advance.