Chapter 4: Help-seeking behaviours
4.3 Psychological models explaining help-seeking behaviours
4.3.5 The Self-Regulatory Model
After the rich contributions of both Mill and Stephen, contemporary discourse on the harm principle was rekindled by a more recent exchange of ideas. In the United States, it
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was triggered by obscenity cases in the Supreme Court and the drafting of the Model Penal Code.15 In England, the debate over the criminal enforcement of morality was reignited when the Committee on Homosexual Offences and Prostitution created the
―Wolfenden Report,‖ which recommended the decriminalization of homosexual acts conducted privately among consenting adults.16In both countries, the debate was fuelled by the perception among liberal theorists that legal moralist principles were experiencing a rejuvenation and were threatening to encroach on liberalism. More than anyone else, Lord Patrick Devlin catalyzed and as well, was seen as the embodiment of this perceived threat.
The Wolfenden Report prompted Lord Patrick Devlin to respond and denounce the committee‘s recommendations.17In his Maccabean Lecture, delivered to the British Academy in 1959, Lord Devlin argued that purportedly immoral activities, like homosexuality and prostitution, should remain criminal offenses. He published his lecture and other essays under the title TheEnforcementofMorals, and Devlin soon became associated with the principle of legal moralism-the principle that moral offenses should be regulated because they are immoral.
Devlin‘s lecture in turn instigated a response from H.L.A. Hart in his lecture and book, Law, Liberty, and Morality.18 Thus, came about the Hart-Devlin debate and the renaissance of 20th century harm principle. As we shall see, in the 1980‘s, Joel Feinberg entered the conflict with his highly influential four-volume treatise, The Moral Limits of Criminal Law. These three jurists defined the contours of the harm principle as we now know it. Before moving on to Feinberg, let us sketch the positions of Devlin and Hart on the matter.
In response to growing dissatisfaction with the treatment of prostitution and
homosexuality in England, the Wolfenden committee was appointed to reevaluate the
state of the laws. As to homosexuality, it recommended, ―practices between
consenting adults in private should no longer be a crime.‖
19As to prostitution, it
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recommended that ―though it should not itself be made illegal, legislation should be passed ‗to drive it off the streets‘ on the ground that public soliciting was an offensive nuisance to ordinary citizens.‖ The reasoning supporting both findings was the committee‘s belief that the function of criminal law 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, particularly those who are especially vulnerable.
20The report specified that there is a sphere of private morality that the law should not invade. It noted that the purpose of the law is not ―to intervene in the private lives of citizens.‖ The report concluded that the law should not ―seek to enforce any particular pattern of behavior further than is necessary to carry out the purposes we have outlined.‖
21Devlin heartily disagreed. In his lecture, he argued that criminal law should enforce
morality. He began by acknowledging that one could conceive of a criminal system
whose laws are not based on morality, and where the State justifies its sanctions by
other means. However, the possibility that such a system could exist did not negate
the idea that a society could still base its laws on morality. Devlin argued that there is
a public morality, which he called a ―moral structure.‖ He believed that a society must
have its own collective ideas, including a collective morality, which bonded
individuals into a community together.Given that society is inherently governed by a
moral code, ―society may use the law to preserve morality in the same way as it uses it
to safeguard anything else that is essential to its existence.‖
22Devlin also offered a
methodology for ascertaining how society defines morality: the reasonable man
standard. ―Immorality,‖ according to Devlin, is what every reasonable person would
consider to be immoral.
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Finally, Devlin discussed what should limit or guide a society in exercising this power to govern morality. He argued that only when the society is harmed should it act in collective judgment.Although this argument sounds like a variant of the harm principle, Devlin believed that ―any immorality is capable of affecting society injuriously and in effect to a greater or lesser extent it usually does.‖
24That is to say, he considered immorality harmful.
Hart on his own accepted that the harm principle is not the only justification for the criminalization of certain acts, which, on their face, seemed to cause no individual harm (e.g. euthanasia, where one party consents to his own killing). He believed that those rules could be explained and justified by some kind‘spaternalism. He also subscribed to the notion that public nuisance was a worthy justification for crimes such as bigamy.
25However, Hart was disturbed by Devlin‘s assumption that certain acts, such as sexually immoral ones, have the ability to hurt society generally for
Devlin had argued that:Immorality might lead to the disintegration of society and society is entitled to use its laws to protect itself from this danger. Therefore, it is not possible to set theoretical limits to the power of the State to legislate against immorality.26
Hart criticized Devlin on this by asserting that, ―There is no evidence to support, and
much to refute, the theory that those who deviate from conventional sexual morality
are in other ways hostile to society.‖
27 On the whole, like the Wolfenden Committee, Hart conceded that coercion might be justified by grounds other than the prevention of harm to others, such asoffence to others, but denied any justification to the legal enforcement of morality as such.28In the finally analysis Feinberg would ultimately,
argue that the only substantial difference between Hart and Devlin is that ―Hart
focused on harm to the individual, whereas Devlin focused on harm to society as a
whole.‖
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As underscored already, the exchange between Hart and Devlin is the major event that set the main terms of the problem of harm and prompted one of the most important jurisprudential debates of the second half of the Twentieth century which found its climax in Joel Feinberg.