Morality and the Criminal Law: Reflections on Hart-Devlin

The relationship between law and morality represents a major theme in jurisprudence and is the subject-matter of this article. I shall focus on the use of the criminal law to enforce morality and, in particular, I shall consider whether an identi-fiable line can be drawn between moral standards that may properly be the subject of legal enforcement and those that may not. This issue was, of course, central to the Hart-Devlin debate. The immediate catalyst to that debate was the publica-tion in Britain of the Report of the Wolfenden Committee I which, among other things, recommended that male homosex-ual conduct be decriminalized. The debate broadly echoed that conducted in the 19th century between the great political philosopher John Stuart Mill and Sir James Fitzjames Stephen, who was arguably the pre-eminent criminal law judge in late-Victorian England.2 In broad outline Mill, Hart and the Wolfenden Committee advocated the liberal cause while Stephen and Devlin are generally seen as legal moralists. In the heady days of the 1960s, and perhaps for many years after-wards, Hart was largely thought to have had the better of th