[0:13]In 1954, a committee chaired by University Vice Chancellor Sir John Wolfenden and comprised of a worthy mix of judicial officers, politicians, medicos, ministers of the Crown, and a vice president of the girl guides was convened to examine the laws relating to homosexuality and prostitution. Reporting three years later in 1957, the committee recommended that consensual sexual activity between men in private should be decriminalized, a recommendation that was not acted upon until the 1960s in the United Kingdom and followed elsewhere including Australia in the following decades. The committee argued that it was not the duty of the law to concern itself with immorality as such. The function of the criminal law, it said, was 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, not to intervene in the lives of citizens. The report sparked a famous debate which commenced in 1959 with a lecture by Lord Patrick Devlin, a distinguished judge entitled the enforcement of morals, in which he argued that the criminal law is not just there for the protection of individuals but for society as a whole, its institutions, ideals and morals. Responding in 1962, Professor Herbert H.L.A. Hart, as he was known, Professor of Jurisprudence at Oxford University in his now classic series of lectures published under the title, Law, Liberty and Morality, Hart argued, following John Stuart Mill, that unless something is harmful to society, the government has no right to interfere in the lives of its citizens. The debate continued in a series of publications for a number of years through the 1960s. There was never a face-to-face debate as there will be today. And though it took place over four decades ago, the issues raised in the debate are still crucial and significant. Homosexuality, abortion, drugs, pornography, prostitution, are all still at the center of political debate, particularly in the United States, where the respective realms of law, religion and morality remain in a state of flux, and where presidencies can be won or lost depending on the strength of feeling, the number of votes cast on the day, rather than on the force of argument or logic. The legalization of homosexuality and the regulation of prostitution in the years following the debate, did not mark a victory for freedom over oppression or justice over law, they were merely way stations in a continuing debate about human rights, individual liberties and the role of the state. Today, the contending philosophies meet face to face.
[3:28]We are going to prove three things to you today. The first is the law should reflect generally shared public morals, including even in situations where harm to individuals is not at stake. Secondly, we will show that it is the source of the law's legitimacy and a true expression of the criminal law's role to protect all of society, and not just the collection of individuals that comprise it. And finally, we will show you that public morals can and do change, and when they do, laws should move with them, but not before. I'm going to speak to you about two things today. The first is that social order requires laws to reflect privately held moral beliefs, not just things that hurt people. The second thing is that the public needs to believe that the law is doing this. The laws will protect their private morality, not just protect them from immediate harm. To my first point, social order requires the law to uphold shared morals. It's almost axiomatic to say that laws should protect the community. Everybody would agree with that. We think that to properly do so, laws must regulate matters which don't just cause harm, but which challenge accepted moral norms, and we think that there are two primary reasons for that. The first is a very utilitarian one. We think that regulating shared social morals actually prevents potential harm. The Wolfenden Report concluded that the law's function is to preserve public order and decency. We think that you need to regulate on a moral basis as well to do that. Why? Because the law's function isn't just to prevent harm, but to set the moral standards that prevent it as well. Let's take as an example, incest. It's conceivable that there could be an entirely consensual, harm-free, incestuous, incestuous relationship. But the law, as it stands and as it should stand, prohibits all forms of incestuous relationships and upholds a norm against that. We override individual liberty. Why? Even in situations where no one gets hurt? Because our society and the law which represents it, sees a value in preserving the family unit, where key relationships are sex-free. We think that that is essential to the moral fabric in some instances, because it prevents the kinds of harms that could accrue, but more generally because it prevents that relationship from ever becoming an unhealthy or negative one. Let's take a second example, of animal cruelty laws. Yes, it's probably true that legislators care about animal rights, and that's why they've passed these laws. We think it's as likely, however, that the point of cruelty to animal laws or laws that prohibit that, is to uphold society-wide norms against cruelty and violence per se, regardless of who they're against. We think legislators aim to create a society in which individuals do not and cannot follow their wishes to cause harm to a sentient being. We think that the law should do those things. It should set those norms, even if no one immediately is harmed by that to protect all of society. So that was the utilitarian reason, it protects social order and it prevents crime. But there's also a communitarian reason over and above that one. Even if the law isn't seeking to prevent harm, we think that laws should uphold morals to preserve integrated communities. We think that what creates a strong and successful community is a common set of values that underpin it. And the knowledge that there is a common set of values that we share, that we're all going to abide by. A community without that belief, we believe, is worse off. Not necessarily that the community will crumble without shared moral norms, but that it is worse off as a community, as a society, than it could be. We think people are less trusting, people are less integrated, and people have more fear and more caution, if those shared morals are not there and are not reflected by the law. A sense of proper community, therefore, relies at least in part on laws upholding moral norms, so that everybody knows what the accepted standards are, and everybody knows that everyone else will be upholding them as well. It's not just enough to know that your belief that incest is damaging and dangerous will be upheld within your family. We think that it's more important that you know the entire community has adopted that view, that you can trust that as a view, and that you live in a community of like-minded people. We're not saying that society would collapse if the law didn't uphold all morals. We're not saying that if gay marriage were allowed tomorrow, that, you know, harms would accrue. It's not saying that each individual deviation from moral norms causes harm. What we're saying is to recognize that a functional society involves moral evolution, right? And we have systems to ensure that. We have polls, we have elections. But a society in which generally held private moral beliefs are not reflected in laws, would be a society with a weaker community. And a society in which people feel like that community is weaker because of it. That is a harm in and of itself, that the law should seek to prevent. Now, Professor Hart criticizes this argument. He says it's tautologically equating a society with its values. But we think that's fine. We think that's fine because, as Lord Devlin himself said, society is something more than people living in proximity to each other in a state of peace. We completely agree. Shared values provide a basis for integration, interaction, trust, and an interest in society, over and above the atomized individual. The law should reflect shared social morals to prevent harm or potential harm, but also to preserve the full function of society. To my second and final argument, the public needs to believe that the law will reflect morality as well. The law sources its efficacy from the consent of the people, both in principle and in practice. Social contract theory justifies the state using its coercive power against individuals through mutual implied consent. We give over some rights, we give over some freedoms in exchange for being protected and having certain gains. We think that it is entirely reasonable that the public would only, and in fact should only, consent to the rule of law, if that comes with the rule of law upholding the things that they consider values, that they consider important, and that they consider morally right, even where that doesn't hurt people. We think that the legitimacy drawn from social contract would fail to exist if the law did not actually reflect the basis upon people would would enter that contract. We think that also manifests practically. If people feel the law doesn't protect or reflect their values, then their adherence to the law is challenged. Now, this adherence is crucial, because there's never going to be enough police officers to make each individual person follow the law. There's never going to be sufficient threat of sanction to believe that every instance of deviation from legal norms will be acted on by the state. We think that there needs to be voluntary adherence to the law, and that is much more likely if people feel like the law reflects their individual values and the values of their community on mass, more than just protecting them from immediate harm. Conversely, the greater buy-in that the public would have into the legal system would increase the amount of adherence and voluntary compliance with the law. But the other side of that is also true. The other side of reduced public faith in the legal system is the potential for things like vigilante behavior. If the public considers something wrong, and the system does not sufficiently respond, then the public may may challenge the state's monopoly on coercive force. You need only look to a 2007 example of a pedophile's house being burned to the ground in Maringa Valley in Victoria. That's an example of people feeling like the law didn't reflect what they considered right, and them taking it into their own hands. What have I told you today? Two things. Firstly, if you think the role of the law is to protect the public, then that involves more than just stopping people from hurting each other, that also involves creating an environment in which people do not hurt each other and have faith that that will happen. But secondly, the public at large must believe that the law reflects their moral values for the law to have legitimacy and efficacy. Therefore, it is our contention, the law should be based on shared social morality. Thank you.
[15:28]My name's Herbert, you can call me Herbert, and that's how Nicki Lacy, my wonderful pupil, called me in the biography she wrote about me. And she revealed in that biography that actually I was gay and actually I kept that a terrible dark secret, and actually it was something I couldn't share with even my closest friends, and actually it's something I tried to disguise from my wife, and that was the way it was in those days.
[16:11]Now, Ahmad Devlin speaks with silver tongue. He is a wonderful debate. He's won all these prizes. I'm just a humble simple professor and you know I can't really do the same as he. But basically he wants to get his grubby hands on every aspect of your private life. Listen to the list of things he wanted in the name of protecting society and in the name of social cohesion. These are the things he at different times wanted to support. Slavery, illegitimacy, blasphemy, apostasy,
[17:23]masturbation, adultery, bigamy, usury, fornication, rape in marriage, prostitution, not wearing your seat belts,
[17:50]wearing a burka, sadomasochism, pornography, and especially on the internet, and suicide, and marriage only for straight people. These are the rules in the name of defending the unity and cohesion of society, that those of Ahmad Devlin's point of view have always been advancing. They want to restrict your freedom of thought by imposing on you regulations that may, as in my humble case, affect something you want to do. They want to be very upset because someone out there is having a great time, and they don't want that and they want to regulate it, and then, lo and behold, they want to regulate and say we do this in the name of a cohesive society because if he gave you the truth and said we're doing it because we think you're disgusting, and we don't like what you're doing, and especially we don't want you having any pleasure in what you're doing, then that might not go down so well. So wrap it up, package it, present it as in your interests and maybe you'll go along with it. He says he's not going to talk about disintegration of society. Well, he talked an awful lot about it back in the time of the Big Mac lectures. And secondly, he said, we're only doing this for society's sake. But did you think that if you have criminal laws against these things, blasphemy, apostasy, adultery, I mean, they had criminal laws about all this. There were predecessors to Ahmad Devlin. He's not alone in this long group of people who've been propounding laws to uphold morality in the name of society. When you have those laws, it makes it very difficult for people to stand up. I know I can tell you this, I didn't really stand up. I didn't stand up for most of my life, but in the end I'd had enough, and I stood up and I gave the Big Mac lecture, and I think it's a good thing that I did. But it's important that you realize that what is done in the name of society, who is society? How dare he speak for society? Society is all of you, and society includes minorities.
[21:35]He says, we shouldn't punish because of incest. Okay, I think also incest needs a very careful look. But is the answer to incest really to throw the adult consenting members of the family into jail? That's essentially what you have to ask is that the role of the criminal law, or is it a role of something else to make sure that vulnerable people are not abused? That positions of power are not misused, that people are informed of why there is an incest taboo in society, that people are told about the problems that can arise with incest.
[22:38]Locking up is not a good look, and locking up is what Ammet Devlin has been very good at over the years. He's been doing it all these years, and then he sweet talks you and says, I'm only doing it for the sake of cohesion of society. Well, society is you, and society includes minorities. So, Ammet Devlin sweet talks you, but when you analyze it, his arguments are weak as putty. And vigilante behavior, he shouldn't talk about vigilante behavior. He's been strong on vigilante behavior over the years, and including vigilante behavior against people like me, Herbert. And I was the subject to the vigilantes, and I'm sick of it and I'm free and liberated and now I'm telling you the truth, I'm at Devlin.
[24:11]The point of this debate isn't that there is one particular set of morals that are right and that those morals should reign supreme. It's that whichever consensus society can reach is the one that should govern society. And I think with respect to Herbert Hart, that was a point that maybe wasn't acknowledged in his speech. So before I get to get to my rebuttal, I'm going to look at three arguments in my speech. Firstly, I'm going to ask the question which was paramount in this debate back in the day, about whether the there are certain places that the law can't go. Whether because something happens in the privacy of your own home, it means that it's beyond the reach of the law. The second thing that I'm going to look at is some of the unintended consequences of an application of Hart's approach to criminal law. And the final thing that I'm going to look at is moral relativism. But the important thing that we should recognize following on from Mr. Hart or Justice or former Justice Kirby's speech, is that the the things that he described, so, as he described a great night out, so slavery, blasphemy, masturbation, adultery, it sounds like an episode of True Blood to me. But he said we stood in the way of you having a great time with those things. And like I said before, with the greatest of respect to our opponent, the point that Devlin made was never that there is one set of morals which should be adopted. There was never a code that he thought should be lifted and applied to people's lives. The point that he was making is that by virtue of the consensus that society reaches, those are the morals that should be applied and should govern that society. And those morals are determined by what the reasonable man thinks on the street. And that reasonable man is something that's relevant to the question that he asked about who is society. This was the second point he made. He said, who's society? It includes minorities. Those minorities are hurt by religion. And we'd say that that's precisely the point that Devlin was making in a lot of his writings. He made the point that secular societies shouldn't focus on adopting a particular theology, so a Christian base, although a lot of our laws are based upon that. That they now have moved on from that, and that the moral consensus reached is the important thing that governs us there. And the reason why the majority rules, is by very the very simple fact that that's the only way society can function and operate. We recognize that in our political systems. We recognize that in our economy. But for some reason, some people believe that the law should be beyond the reach of the consensus of the majority there. He conceded that incest needed greater inspection. That we had to look at this point. That he said the solution isn't to lock up those people or those consenting adults. The solution must be found elsewhere. And we're really interested to know what that solution is, because from our perspective, there are two choices. You can either look for your moral code to religion, which we think is no longer applicable in a country like Australia. Where there isn't one shared religion between most persons, where a lot of people aren't religious at all. So in in the place that religion previously held to instruct people on how to best lead their lives, we think that there's a role for the criminal law to play there. And so that means that you actually undermine the chances of having religious code adopted willy-nilly, because you actually look at what the consensus is amongst people of all different types. And granted, there are some people whose rights will be infringed. There are some people that won't get to have the big night out, or, you know, to be more honest, who won't get to be in the relationships that they might otherwise want to be. But we think that that's just the reality of how society works and that as Amid said, society is stronger for having that consensus among its population. So I want to look at three things in my speech, as I said before. The first point that I want to look at is this question of the public and the private divide. And something that came out of the Wolfenden Report was that no act of immorality should be made a criminal offense, unless it is accompanied by some other feature such as indecency, corruption or exploitation. The clear rule that we took from this report and from subsequent interpretations of it, was that some things behind closed doors should remain behind closed doors. And what we see very clearly on the affirmative side is that this divide has very harmful consequences. It firstly has harmful consequences for the for the vulnerable. And this excuse of what's behind closed doors was used to prevent the courts and governments from intervening in private homes where we saw domestic violence occurring, or where we saw child molestation occurring a lot of the time because what's behind closed doors stays behind closed doors. We have really high profile cases of South Australian judges allowing rougher than usual handling with their wives because it was within the sanctity of marriage, and it was a private operation. We don't think that that's acceptable, and the the principle that Wolfenden relies upon has obviously led to significant harms. And morals have shifted over time and said that that's not the way that we interpret the extent and the reach of the criminal law. Another important point to note is that what defines the public or the private realm is defined generally speaking by those in power. And those that have a vested interest in maintaining their current dominance. So we actually think that the more that the criminal law has to do, so the greater reach that it has under Devlin's interpretation, the better off individuals will be because then they're not there's no such thing as too far for the courts. We also think that there should be no theoretical limits to the reach of the law. And as Devlin said very clearly, the law cannot be shut out, especially indefinitely. We think that behaviors change over time and that the criminal law needs to adopt to that. And if people become, if people believe that certain acts are beyond the purview of the law, then we think that that changes the way that people interact and how they interact behind closed doors, because they know that there aren't going to be significant consequences there. The final point that I want to make here is that if private morality or immorality isn't the law's business, then why do we prevent those things that he listed? Why do we prevent things like bigamy? Why do we prevent things like polygamy or female genital mutilation? And of course, you know, at some of those examples, there are cases of individual harm. But a lot of them, there aren't. There are many communities that would happily live in a polygamous environment. We see Malaysia that that's often a polygamous environment. And we see that it's actually just a moral judgment that we're ultimately making at the end of the day. That we still have this as an important part of our justice system. And then if we were to change it, we think that there would absolutely be no end to what people should be able to do in certain environments. The next point that I want to make is that the harms are often worse to the individual, that there are unintended consequences to the approach that Hart takes in this type of a debate. We look at the example of we look where laws are disconnected from what the majority think. So that might be where they recognized an individual right or they didn't recognize an individual right. An example is prohibition in the United States in particular, where that led to significant bootlegging after the fact, and lots of unintended consequences flew with that. Another example we can look at is abortion, especially in places like the United Kingdom and Australia, where the majority had moved on from the individual's interpretation of abortion laws there. And that when there was that disconnect between what society believed and what they were prepared to do, and what the law said, you saw significant harms like backyard abortion. Of course, the the modern day Harteon, or the Milsian would accept that abortion was something generally speaking that was allowed. But we think that that debate is clouded in that environment. The final point that I want to make is an important point, and that's that there is a degree of judgment that comes when you interpret and when you propose heart's approach to the criminal law. We think that it is one particular interpretation of the best way to live your life, that the individual is at the center of that. But what we think societies need to do is to be able to organize themselves in ways that reflect their own particular opinions. Whether that is about focusing on the individual rights, or whether it is about a more utilitarian, or communitarian approach, like a mitt flagged. It's important to allow communities to form their own ideals, rather than presupposing one approach. And that's exactly what a Devlin approach does, in that it says, irrespective of what those morals are, whether you believe that they are the correct morals, the dominant discussion within the community and consensus is what should bind that community.
[38:22]So with those points in mind, we think that at the end of this debate, there's ultimately, well, there is ultimately still a debate left to be had. But we think that the reality is that our criminal law system does, by and large, adopt an approach that straddles both worlds. And we think that that's something interesting to reflect on in this day and age. Thank you.
[39:40]I would completely agree that necessarily if laws and inevitably will reflect some element of public consensus because that's how they're made, will always be a step out of date because getting that kind of mass together to influence politics, to influence legislative change, or even to funnel through to the highest edifices of law to make law that way, takes time. And I think that that in itself is a is largely a good safety mechanism, because it means that momentary indulgences or individual peccadillos don't become the law unnecessarily, but only when things ossify through time to have quite a lot of broad-based support, do they become entrenched in laws.
[40:48]But as I'm sure we've heard several times, the danger of that is that people who are necessarily the numerical minority, or who are the victims of social disgust, will always be a step behind that as well.
