persistent criticism of Mill's liberty principle is its alleged failure to recognize that there are certain important social structures and institutions which a society is justified in protecting even at the cost of coercing individuals whose conduct threatens to undermine them. The most notable recent attempt to support this point of view is by Lord Devlin in his much discussed book, The Enforcement of Morals, in which he explicitly picks on Mill as one of his main targets of attack. Devlin's argument centres on what he regards as the vital function of the criminal law in enforcing the generally shared moral values of a society which are associated with its important institutions. The case for the law's enforcement of society's shared morality is based on several different considerations, most of which are embodied in two doctrines which Hart has labelled the “disintegration thesis” and the “conservative thesis” respectively (Hart). According to the disintegration thesis, a shared morality is what holds a society together, and hence the enforcement of this morality is necessary to prevent society from collapsing, or at least weakening. On the other hand, the conservative thesis maintains that “the majority have a right to follow their moral convictions that their moral environment is a thing of value to be defended from change” (Hart, 2). Hart takes this characterization of the conservative thesis from Dworkin. In this chapter I shall discuss each of these theses in turn, and determine the extent to which they are incompatible with Mill's liberty principle.
In putting forward his disintegration thesis, Devlin argues that a society's existence depends on the maintenance of shared political and moral values. Violation of the shared morality loosens one of the bonds which hold a society together, and thereby threatens it with disintegration. The criminal law may therefore be invoked to protect this shared morality in the same way as it is used against treason and [85/86] sedition; this analogy has been effectively criticized by H. L. A. Hart, "Immorality;" see also Joel Feinberg, 38-9. Breaches of the shared morality do not cause harm to other individuals in the way that murder and assault do, but none the less they harm society by undermining its moral structure. Even acts like homosexuality between consenting adults in private can threaten the existence of society, and therefore society has the right to suppress them.
However, there are certain “elastic” principles which determines when society should exercise this right. Devlin's principles are very similar to Fitzjames Stephen's conditions for determining when the criminal law should be used against immoralities; see Stephen, Liberty, 159-60.. As far as possible there should be toleration of individual liberty. The law should also be slow to act in enforcing moral standards, in case the strong feelings against a particular form of conduct should subside and deprive the law of the backing it needs to be effective. Again, privacy should be respected wherever possible. Finally, the law may not be a suitable instrument for upholding all the shared values of a society.
But Devlin believes that “the limits of tolerance” are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of “intolerance, indignation and disgust”. If, for example, it is the genuine feeling of society that homosexuality is “a vice so abominable that its mere presence is an offence” (17), then society may eradicate it.
Devlin believes that violations of the shared morality result in two types of harm to society -- tangible and intangible.
The “tangible harm” seems to consist in a diminution of the physical strength of society. There are activities which are quite harmless to society when only a few of its members indulge in them, but which become harmful when the number of participants grows large. Devlin cites drunkenness as an example. He also argues that “unrestricted indulgence in vice” will weaken an individual to the extent that he ceases to be a useful member of society, and society itself will be weakened if it has a sufficient number of such weak members (133). He believes that a vicious minority “diminishes the physical strength of society” (133). Here then is one sense in which violation of the shared morality harms society: society loses its physical strength because immorality breeds physical weakness in its members.
But the argument here does not fit in very well with Devlin's general account of the importance of having a shared morality. [87/88] The tangible harm that certain forms of conduct allegedly cause is not related to the fact that such conduct breaches the shared morality. For if drunkenness, drug-taking, and fornication are physically weakening, then they are so quite independently of whether they violate the shared morality of society. Devlin believes that the cohesiveness of the shared morality does not depend on its quality, but on the fact that it is commonly accepted by the members of the society (114)? This being the case, it is quite possible that the debaucheries of one society would form part of the cherished shared morality of another society. Do they then cease to be physically weakening? If, for example, fornication is physically weakening, then surely it remains so even if it becomes acceptable to the shared morality of society. But if, on the other hand, it is the “unrestricted indulgence” in sexual activities which is physically weakening, then it is difficult to understand what difference it makes when such indulgence takes place within marriage rather than outside it. Of course it may be that the physical weakness stems from attempts to evade apprehension by the law. But in that case the remedy is simply to remove the sanctions of the law.
Again, drinking, drug-taking, homosexuality, abortion and suicide may cause serious social problems if they axe widely and indiscriminately practised. But so also would birth control, or the very different practice of having very large families, or even, as Devlin himself acknowledges, celibacy (112). It is therefore not qua breaches of the shared morality that certain activities can become harmful to society, and hence their being harmful does not in any way support Devlin's disintegration thesis.
But Devlin also postulates a second type of harm caused by deviations from the shared morality of society. This is what he calls the “intangible harm” resulting from the weakening of the commonly held moral beliefs. Most men, he claims, take their morality as a whole, and immoral activity, by weakening belief in one part of society's shared morality, will probably result in the undermining of the whole morality. When there ceases to be common belief in the value of the moral code, society is threatened with disintegration. Whatever is involved in the “disintegration” of [88/89] society, on this argument it is brought about via the rejection of the shared morality.
Devlin stresses that he is not against change as such in the shared morality. But he points out that an existing shared morality cannot be quickly replaced by another shared morality in the way that one changes an old coat for a new one (114). There will first be a long period in which common moral beliefs are absent. It is this “interregnum” which is dangerous. But against this it can be argued that the whole of the existing shared morality is not under threat at the same time. At any one time only parts of the shared morality will be changed, or will be challenged, and there will be other parts which will be sufficiently accepted to ensure the safety and cohesiveness of society. Devlin rejects this possibility because he believes in the connectedness of the different parts of the shared morality. On his view, if one undermines one part of the shared morality, one threatens the whole of that shared morality. He does not explain why he thinks that the shared morality should be connected in this, rather than in another way, nor does he cite evidence in support of his claim [but see Hart, "Social," 13].
But suppose that the available evidence is indecisive as between various alternative accounts of the shared morality. Where then does the burden of proof lie? It has been suggested that societies can only be guided by their own lights. If, in a particular society, there is a genuine belief in the disintegration thesis, then this would be adequate justification for Devlin's position (Reynolds, 1335). On this view, if, for example, it is generally believed that deviations from the shared sexual morality will bring about the collapse of society, then this is sufficient to justify the suppression of the deviant conduct. But no one with even a minimal respect for individual freedom can possibly accept this. Religious intolerance, racial persecution, and the suppression of the fundamental liberties of minorities, can all be justified on this basis. The belief that tolerance and freedom lead to the collapse of society need not then be supported by evidence. A person may conduct his own life according to his own lights, but where one is going to inflict suffering on others and deprive them of their valued freedom for the sake of avoiding a very speculative harm, one must surely accept the burden of proof. [89/90]
Devlin's “elastic” principles show that he has a general respect for tolerance and individual freedom. But at the same time he rejects Mill's defence of freedom because he thinks that Mill works with too idealistic a picture of human beings. He claims that Mill envisages people earnestly and conscientiously doing what they think is right even though others disapprove of their conduct. But this is seldom true of those who violate the shared morality of society. Devlin thinks that most of them acknowledge the wrongness of their conduct, but still act as they do because of lust and the desire for money. He declares: “Freedom to do what you know to be bad is worthless.” [Devlin, 14]
But Devlin's argument is not persuasive, and his dichotomy of human motivation is too simple. A person may violate the generally accepted values of his society not because he is too weak to refrain from an action he knows to be wrong, but rather because he believes that in those areas many different modes of conduct are morally permissible. In areas where conduct does not harm others, it is quite common for a person to think that what should be done varies with one's tastes, temperament, and personality. Such a person may not wish to win anyone over to the way of life he has chosen for himself because it is not the only one he regards as acceptable, and it may not suit others. But equally, he does not believe that what he does it wrong, and he would certainly strongly resent any interference. It is much easier to see this point of view if one moves away from the emotionally charged sexual sphere to the choice of hair-styles, clothes, food, drinks, houses, cars, hobbies, etc. In all these cases one may, at least to a certain degree, be indulging oneself, but where such indulgence is not regarded as wrong, there is not strong reason for the person to avoid pleasing himself. Many forms of conduct which Devlin regards as vices are not acknowledged as such by those who engage in them. No doubt such acts are not done out of a deep conviction that they are the uniquely right acts to perform, or for the sake of Queen and country, but simply because they are regarded as enjoyable. A great deal of human freedom is demanded for the sake of being able to engage in such innocuous activities.
Devlin does not succeed in providing good grounds for the [90/91] acceptance of his disintegration thesis. But even if the thesis is true, how does it undermine Mill's liberty principle? Devlin writes of harm to society as opposed to harm to individuals. Perhaps he is here invoking something like Feinberg's distinction between “the public harm principle” and “the private harm principle” (Feinberg, 25, 37). On this account “harm to individuals” is constituted by injury to specific individuals such as is caused by acts of homicide, assault, and robbery. On the other hand, “public harm” consists of the “impairment of institutional practices and regulatory systems that are in the public interest” (Feinberg, 25). Feinberg suggests that Devlin's disintegration thesis, with its appeal to the notion of harm to society, is really an application of the public harm principle that coercion necessary to prevent public harm is justifiable (37). If this is the case, then there is no disagreement of principle between Devlin and Mill, for Mill's notion of harm, as explicated in Chapter 4, embraces both private and public harm. If the factual claims made by Devlin are correct, then even on Mill's liberty principle there is a case for the legal enforcement of the shared morality. For on this interpretation of Devlin's disintegration thesis, the harm which justifies legal intervention is not identical with the mere feelings of “intolerance, indignation and disgust” which are aroused when the majority in a society learn that their deeply cherished moral values have been breached. Rather the presence of these feelings become a sign of impending harm if deviations from the shared morality are left unchecked. However, when one moves from his disintegration to his conservative thesis, the notion of public harm is either dropped, or else it is transformed in such a manner as to be indistinguishable from the mere feelings of intolerance, indignation, and disgust in the majority. In either case the conservative thesis is incompatible with Mill's liberty principle. But that is a matter to be explored a little later. Confining ourselves to Devlin's disintegration thesis, it appears that the thesis itself does not amount to a rejection of Mill's view. The crucial issue which divides Devlin from Mill's supporters turns on the apparently false factual claims with which Devlin tries to back up his thesis.
ut it may now be suggested that Devlin's arguments help to focus on the limitations of Mill's individualism.18 The sources of harm are numerous, and Mill's individualism made him very sensitive to harm caused by one individual to another. But, on the other hand, it also led him to ignore the cohesive effects of having shared values and institutions. Mill therefore failed to appreciate a very important source of harm -- the harm to society caused by the undermining of these institutions and the violation of the shared values. Although such harm can be assimilated into his concept, he tended to ignore it and concentrate on harm to assignable individuals.
This criticism of Mill is unjustified. In a passage in his essay on 3, Mill himself stresses the importance of shared values in maintaining a stable society. According to the Autobiography (185), essay was written for Radicals and Liberals, and so he underlined, and perhaps even overemphasized, those aspects of Coleridge's view from which he believed that they had most to learn. However, although he made some amendments to the passage when he reprinted the essay later on in Dissertations and Discussions, he never gave up its crucial points, and the passage is reproduced in successive editions of his A System of Logic [I discuss some of these amendments in Chapter 9; the passage is collated in the Collected Works, Vol. x, Appendix D, 503-8]. The context of his discussion is his attack on the radicalism of the eighteenth-century French thinkers. He argues that in their attempt to wipe out old beliefs, institutions, and practices which they found defective, they overlooked the cohesive effects and the sense of unity which these institutions and practices generated. They destroyed without replacement, and thereby subverted not merely what was bad in society, but also the very conditions of a stable society. Mill mentioned three such conditions.
First, there is to be a system of education which disciplines and restrains people from giving vent to their selfish and anti-social impulses.
Next, there must be a feeling of allegiance or loyalty to something or other -- to a common God or gods, to certain persons, to laws, ancient liberties and ordinances, and, Mill later adds, to “the principles of individual freedom and political and social equality, as realized in institutions which as yet exist nowhere, or exist only in a rudimentary state” [Collected Works, Vol. x, 134]. [92/93]
Finally, it is important to have a feeling of common interest among those who live in the same society. Here Mill has in mind the feeling of nationality, though not, as he says, in its “vulgar sense” where it is identified with hostility to foreigners, and foreign ideas and institutions. In Representative Government he writes:
This feeling of nationality may have been generated by various causes. sometimes it is the effect of identity of race and descent. Community of language, and community of religion, greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past. None of these circumstances, however, are either indispensable, or necessarily sufficient by themselves. [Utilitarianism, 360]
But it is Mill's second condition which is most relevant to our immediate concerns. Mill evidently believes that some shared values are necessary to the stability of society. There must be
something which is settled, something permanent, and not to be called in question; something which, by general agreement, has a right to be where it is, and to be secure against disturbance, whatever else may change.... But in all political societies which have a durable existence, there has been some fixed point; something which men agreed in holding sacred; which, wherever freedom of discussion was a recognized principle, it was of course lawful to contest in theory, but which no one could either fear or hope to see shaken in practice; which, in short (except perhaps during some temporary crisis), was in the common estimation placed beyond discussion. [Collected Works, Vol. x, 133-34]
These shared values would presumably embrace what Hart calls “universal values”, which are incorporated, at least to some degree, in the common morality of all societies (Law, 70). They include the safety of life and the protection of persons from deliberately inflicted harm. But obviously Mill has in mind something more than the universal values. In referring to the necessity of loyalty to common gods, to laws, ancient liberties, and ordinances, he acknowledges the importance to particular societies of specific institutions and practices which are of no use to other societies. He adds that what enables a society to weather the storms caused by the collisions between different interests and groups is that the conflict does not affect the fundamental basis of the social union (Collected Works, Vol. X, 134). [93/94]
In interpreting Mill's remarks, it should be noted that e three conditions he lays down for a stable society are not intended to be the criteria of a good society. A good society must of course be stable, and a stable society will satisfy these conditions. But not all stable societies are good. The feeling of loyalty may therefore attach itself to undesirable objects, such as outdated customs and practices. Mill is not committed to maintaining that the particular objects of this feeling should never change. His many remarks in the essays on Bentham and Coleridge on the reform of existing institutions and practices give a clear indication that it is not change as such, not even radical change, which he opposes. Thus, commenting on the Reform Bill of 1832, he states: “The good it has done, which is considerable, consists chiefly in this, that being so great a change, it has weakened the superstitious feeling against great changes” (Collected Works, Vol. X, 153). Nor, it appears, does he seek to exclude the questioning of any particular belief which is essential to the stability of society. “A person”, he says,
accustomed to submit his fundamental tenets to the test of reason, will be more open to the dictates of reason on every other point. Not from him shall we have to apprehend the owl-like dread of light, the drudgelike aversion to change, which were the characteristics of the old unreasoning race of bigots. [Collected Works, Vol. X, 163]
Who then is Mill's opposition? Surely “the negative, or destructive philosophers; those who can perceive what is false, but not what it true; who awaken the human mind to inconsistencies and absurdities of time-sanctioned opinions and institutions, but substitute nothing in the place of what they take away” (”Bentham”, Collected Works, Vol. X, 79); those who “threw away the shell without preserving the kernel; and attempting to new-model society without the binding forces which hold society together, met with such success as might have been anticipated” (”Coleridge”, Collected Works, Vol. X, 138).
The foundations of a particular society may be undesirable, but they should not be destroyed without first of all laying new foundations of common loyalty. All that a society holds sacred may be questioned, but not all should be questioned at the same time. At any particular moment there will be something settled, but what is settled is not necessarily the same from one moment to another. [94/95]
Mill is concerned with Promoting social reforms within a stable framework which preserves whatever residual value existing institutions and practices may have. In Representative Government he says that “when Order and Permanence are taken in their widest sense, for the stability of existing advantages, the requisites of Progress are but the requisites of Order in a greater degree; those of Permanence merely those of Progress in a somewhat smaller measure” (Representative Government, 189). In the essay on Coleridge he uses “permanence” in this same sense of stability. He wants to promote both “permanence” and progress. And it is social stability through change that he stresses, and not the absence of change as such, even in fundamental institutions and practices.
For Mill, a good society must rise above the requirements of a stable society. The presence of a high degree of individual freedom is one of the conditions of a good society. Of course it is possible that respect for individual liberty can itself become an object of common loyalty, and thereby a source of social stability. Indeed, as we shall soon see, this possibility is envisaged by Mill. But at the moment it is important to note that although all societies need a degree of stability in order to survive, it does not follow that the greater the degree of stability, the better is the society. So suppose that it is true, as it has sometimes been alleged, that the cost of having a large measure of individual liberty is a degree of instability in social life, for allowing Millian “experiments in living” may introduce an element of uncertainty into social life. We cannot be sure how individuals will exercise their freedom, what new styles of life will arise, and what values will be accepted or rejected, But for Mill this would be a small price to pay for the far greater benefits of freedom. Certainly such “instability” is compatible with the existence of. the necessary degree of regularity and security in social life, and is a very far cry from the chaos and social dissolution that Devlin's disintegration thesis conjures up.
Various versions of the idea, similar to Mill's, that some shared values, over and above the universal values common to all societies, are necessary for the continued existence and stability of society, have been expounded in the writings of sociologists and political scientists. The notion of a consensus [95/96] is used to express this point of view [Partridge, Chs. 4-6]. It is interesting to note that on some accounts, shared values are necessary at a rather general level, and not with respect to specific issues like the importance of monogamy and Christian sexual morality that Devlin has in mind when he propounded his disintegration thesis. Thus some consensus theorists argue for the necessity of agreement about the basic constitutional rules of the society, and the values which are embedded in them (Partridge, 89f; Partridge critizes such theories at 93-95). These rules and values will of course vary from society to society. In complex societies one may not be able to find widespread agreement on anything so specific as particular moral codes regulating areas of conduct like sexual activity.
In The Division of Labour, Durkheim stresses the decreasing importance of “mechanical solidarity” as opposed to “organic solidarity” in providing the basis of social cohesion in modern societies. By the former he refers to the solidarity which arises out of the resemblances between members of a society, out of their common beliefs and sentiments. Durkheim calls the set of common values and beliefs the “conscience collective”. The “conscience collective” is the source of social cohesion in traditional societies. However, as societies get more complex, the extent to which beliefs and values are held in common diminishes, and mechanical solidarity is gradually replaced by organic solidarity, a solidarity based on the differences between men. The growth of division of labour results in the interdependence of individuals who pursue different occupations. This interdependence is the source of organic solidarity. But even in modern societies, mechanical solidarity has a residual role although the content of the “conscience collective” changes drastically from that in traditional societies where it is religious in character ( Durkheim, 141-50 and Giddens, Introduction, 3-12; see also Hart, "Solidarity"). In an essay, “Individualism and the Intellectuals” published a few years after The Division of Labour, Durkheim argues that the values of individualism form the “only system of beliefs which can ensure the moral unity of the country,”34 Individualism recognizes the sacredness of the human person, and stresses the importance of safeguarding his rights and freedom. The weakening of individualism will lead to social dissolution, and hence the defence of the rights of the individual is also a defence of society's vital interests. [96/97]
Durkheim's view, that in modern societies the only mechanical solidarity possible is that built on the values of individualism, closely resembles Mill's later account of the conditions of social stability. In amendments to his discussion of these conditions, Mill writes that the feeling of allegiance or loyalty may attach itself to “the principles of individual freedom and political and social equality”, and he believes that “this is the only shape in which the feeling is likely to exist hereafter” (Collected Works, Vol. X, 134). So we see Mill both acknowledging the importance of shared values in promoting social stability, and at the same time committing himself to a belief in the fundamental value of individual freedom and of political and social equality. Mill's emphasis on individual freedom also draws attention to the gap between maintaining, on the one hand, that certain shared values are necessary for social stability, and claiming on the other hand that these shared values may be imposed by legal coercion. For it is possible that at least in some cases, an enforced consensus will not produce the desired stability, and only the voluntary acceptance of shared values will do so. This seems to be Mill's view when he speaks of the general agreement in treating something as settled and not to be called in question [cf. Capaldi].
Finally, Mill's account of nationality reflects his belief that it is not just shared values which contribute towards social stability, but also many other factors like shared experiences, a common history, a common language, and identity of race. None of these, as he points out, is either indispensable or necessarily sufficient in ensuring stability, but each is often important. These factors may of course generate shared values, though not necessarily moral values. Similarities of tastes in food, dress, music, sport, forms of entertainment, and an enjoyment of, or participation in, ceremonies and rituals often draw people together. In looking for the sources of social stability, it is as much a mistake to ignore these factors as it is to exaggerate them. In any case it is certainly a mistake to assume that there is necessarily one set of values or factors which bind all the people in the society together. It is in this context that individual liberty acquires a special importance. It allows individuals to develop different interests, and to form or to join groups catering to these interests. [97/98]
Groups with common interests are not necessarily formed consciously and deliberately, nor are they always deliberately sought after. An individual is born into a group, and the process of growing up in a society exposes him to a variety of interests. But without the freedom to move in and out of certain groups, the individual will feel stifled and unable to develop some of his interests, or to dissociate himself from interests he no longer shares, or demands and pressures that have become oppressive. The mere process of living in a society generates many bonds of social union, even when there is no one set of values or interests which all or most people in that society share. Differences and conflicts between groups need not loosen these bonds except when these differences range over a very wide area, and different groups cease to have some important overlapping interests. For example, if the main groups in society are divided along racial, religious, cultural, and economic lines in such a manner that those of the same race also share the same religious and economic interests, then the mutual reinforcement of these powerful interests may be such as completely to overshadow all other interests. It is in this type of situation that conflicts between the main groups may have severely disruptive effects. On the other hand, in many societies, the absence of a shared sexual morality will in itself be no more disruptive than the absence of a fondness for the same type of food.Law, Morality and Religion in a Secular Society, Basil Mitchell tries to clarify and develop some of Devlin's arguments. He maintains that Devlin need not accept the two alternatives of either supporting his disintegration thesis with empirical evidence, or of turning it into the quite uninteresting thesis of identifying a society with a specific shared morality such that if there is any change [98/99] in this morality, then the society has by definition “disintegrated” (31-35). According to Mitchell, Devlin believes that the law has a right to protect the essential institutions of a society and the morality associated with these institutions (67). The “essential institutions” are not institutions without which society would disintegrate or weaken, nor are they institutions without which society would simply be different. A society would be different in some fundamental way in the absence of an essential institution. But what counts as a fundamental change in society? How do we distinguish between essential and non-essential institutions?
In illustrating the idea of an essential institution, Mitchell refers to the Franks Report on Oxford University, and here he provides one criterion of what an essential institution is. “College life” and the tutorial system are regarded by the report as centrally important because, though other universities have their own virtue, “the distinctive merits of Oxford are bound up with these institutions” (32). From this, and another illustration which Mitchell gives later, namely, the preservation of the Welsh language and the Welsh Sunday because they are “characteristically Welsh” [Basil, 34], it is clear that for him an institution is essential to a society if it is characteristic or distinctive of that society. But it is not at all obvious that the law is justified is protecting the essential institutions in this sense. Mitchell gives no sustained or clear arguments here. He seems to appeal to the value of diversity among societies, and describes this as “a simple extension to nations and other cultural groups of the principle to which Mill attached so much importance in relation to individuals, “there is no reason that all human existence should be constructed on some one or some small number of patterns” (34). But Mill's principle is meant to promote individual liberty against the dominant pressures of a society. When an apparently similar principle is applied to societies instead of individuals, it is not a “simple extension” of Mill's principle, but an entirely different principle which may well threaten that very individual liberty that he tried so hard to defend. A totalitarian nation, free from external domination, can preserve its characteristic qualities by suppressing more and more of the freedom of its citizens, and in the name of [99/100] nationalism individuals can be thrown into gaol. Mitchell speaks of the apparent indifference to the quality of the essential institutions of a society as a defect in Devlin's position. But his own position displays a similar defect. He is aware of this when he refers to “the Herrenvolk doctrine of Nazi Germany or South African apartheid”, but dismisses these as “grave corruptions” of his principle (34). However, if Nazis and South African whites had dispensed with false theories of racial superiority, and rested their cases simply on the need to maintain the distinctive essential institutions of their respective societies, then they would merely have invoked the very principle Mitchell is defending.
Mitchell's use of his principle is based on a confusion between the application of the principle to ward off external aggression by another society seeking to impose a different pattern of life on the unwilling members of a particular society, and its use to prevent an internal change in the established institutions of a society by its own members. When used against external aggression, his argument is the familiar one that nations have the right of self-determination. Those opposed to colonialism will find the argument most attractive, even when the external aggressor is a nation which is, by generally recognized standards, more advanced culturally, economically, and technologically. The argument is also powerful when it is used to support the rights of distinct and well-defined minority cultural groups to preserve their cultural life from the demands made by a different and dominating majority group within the same society. But the argument, thus restricted, is used defensively to protect a culturally distinct group of people from losing its identity as a result of external domination. On the other hand, Mitchell's “extension” of Mill's principle seeks to justify the legal enforcement of the shared morality, and involves the imposition of a uniform pattern of conduct on all the members of a society. It is therefore paradoxical for him to claim that he is appealing to the value of diversity.
However, there are times when it appears that Mitchell's justification of the right of society to preserve its essential institutions and the associated morality leads to the protection of something other than society's currently shared [100/101] morality. For essential institutions are those institutions which are peculiar to a particular society: the “Welshness of Wales”, that which distinguishes Wales from England. But in this sense, what are most “essential” to a particular society are not necessarily institutions and patterns of life which are now widely cherished, for societies may have become, with respect to these, “largely indistinguishable” from one another. What marks out a particular society from others may be a way of life that once was but now largely is no more, except perhaps in the memories of a few of its nostalgic older members. In such a situation, Mitchell's argument would lend support to the restoration of a morality and way of life that was once widely shared, even though they may now be equally widely rejected.
There is therefore some ambiguity in Mitchell's position. On the one hand, he uses the notion of the characteristic or distinctive institutions of society to support Devlin's case for the legal enforcement of the shared morality, and he is then putting forward a version of the conservative thesis. But, on the other hand, his use of the notion of essential institutions sometimes seems to justify the enforcement of a pattern of conduct which is fast fading away, but which was most distinctive of that particular society. This latter thesis is not the conservative thesis, and is far removed from anything which Devlin himself wishes to maintain.
Devlin's conservative thesis is very much tied up with his frequent appeals to the feelings of intolerance, indignation, and disgust of the ordinary person. The lawmaker's duty is to preserve the essential institutions of his society. He does not have to ascertain whether the moral values embodied in these Institutions are correct. His business is to find out what the shared morality is, and this can be done by ascertaining what is, and what is not, acceptable to the ordinary person. Devlin seems to imply that if the ordinary man feels strongly that a Particular institution is important, then this is an essential institution which the law may seek to preserve. He justifies this by appealing to the democratic process. He claims that, as a matter of fact, issues of great moment are settled by the ordinary citizen. This is as it should be because in a democracy “in the end the will of the people must prevail” (Devlin, 92). To reject [101/102] the views of the ordinary citizen as the final arbiter of how the law should act, and to appeal instead to the opinions of the educated élite in society, is undesirable. First, educated men often do not agree with one another on moral issues. Second, even if there is a consensus of moral opinions among the educated élite, to act on such a consensus is to set up an offensive intellectual oligarchy which is undemocratic in character.
Devlin's theory of democracy implies that it is undemocratic for legislators to enact unpopular laws. But if the criterion of whether a government is democratic is the extent to which it satisfies the will of the majority of the people, then dictatorships with mass support, but no free elections, would be quite “democratic”. However, Devlin does not consistently hold on to his theory of democracy. He says that sometimes an ardent minority may carry greater weight than an apathetic majority (96), and that a legislator's task is not just that of counting heads (94). On these occasions, he seems to be moving toward the view that the opinions of the majority do not necessarily determine the acts of lawmakers, nor should they do so. Of course the views of the majority may sometimes set limits to what legislators may or may not be able to do, but legislators in a democracy are not obliged to follow these views, even when they are strongly and firmly held.
Neither Devlin nor Mitchell presents his conservative thesis as such for long. They often shift from the conservative to the disintegration thesis. But on those occasions when they do put forward the conservative thesis in its pure form, they seem to invoke either a mistaken theory of democracy, or that “romantic conception of nationality” which Mitchell so rightly deplores in others.
nother criterion of an essential institution employed by Mitchell is that it is an institution with ramifications (25). It is in this sense that marriage is an essential institution because of its connections with the institutions of parenthood and property. The ramifications of an institution obviously determine to some extent its importance in social life. But it is necessary to consider the different reasons for this since [102/103] not all of them are relevant to the conservative thesis.
Mitchell refers to the difficulty of predicting the effects of social changes (122), and it is true that the greater the ramifications of an institution, the more difficult it is to predict the likely consequences of a change in the institution. The legal protection of an essential institution may then be urged because of the fear that great harm would follow in the wake of the destruction or radical reform of the institution. But whatever the merits of this justification, neither Mitchell's nor Devlin's conservative thesis can rest simply on it, for they would then be falling back on the disintegration thesis, or on the generally accepted principle that the law may protect individuals from being harmed.
For there to be a distinct conservative thesis, society's right to preserve its essential institutions must then depend on other considerations. Perhaps it may be argued that the greater the ramifications of the institution, the greater will be the change in social life effected by the destruction or radical reform of the institution, and hence the greater the disturbance caused to individuals used to a particular social environment. When an essential institution, which is cherished in this way, is associated with a deeply felt and widely shared morality, public deviations from that morality may cause considerable offence to individuals. It may then be urged that it is unfair to deny a person a voice in determining what the social environment which he shares with others should be if he cannot, except with great difficulty, escape from that environment. Where there is a sufficiently strong chorus of voices against a particular sort of conduct, the law may legitimately seek to prohibit such public offensive acts.
If such acts may be prohibited, it is not simply because they are offensive, but because they are offensive nuisances. What converts an act which is merely offensive into one that is an offensive nuisance? One relevant factor is that the offensive conduct is “thrust upon unwilling eyewitnesses” (Hart, Law, 38-48; Hart's position is criticized by David A. Conway). This requirement will not be satisfied simply because an act is committed in a public place in the sense in which a public place is any place that “members of the public” are allowed to go, as opposed to a private house or garden. The act must be “public” in a different sense, namely, that it is performed [103/104] in a place that people actually frequent and it is difficult for them to avoid. A secluded beach, which the public are allowed to use, but which as a matter of fact they do not visit, or can very easily avoid using, is not a public place in the required sense. So, for example, sexual intercourse performed on such a beach, especially at an unearthly hour, is not an offensive nuisance, even though the knowledge of it may strongly offend many in society. On the other hand, if sexual intercourse takes place at peak hour in a busy shopping centre, then it is obviously an offensive nuisance. Similarly, an obscene film, discreetly advertised, and shown in a hall to all adults who wish to see it, is not thrust upon an unwilling audience. But the same film, shown in an open-air theatre, visible to all passers-by, is an offensive nuisance.
It is not easy to spell out all the relevant considerations which identify an act as an offensive nuisance, or which justify legal intervention in such conduct. In his important contribution, Joel Feinberg specifies two principles which must be satisfied before offensive conduct may be legally suppressed ("Immoralities;" see also the comments by Michael D. Bayles and Feinberg's reply in the same volume; Feinberg's paper is also discussed by Donald Van De Veer). The first is that the conduct would offend “almost any person chosen at random, taking the nation as a whole” [Feinberg, "Immoralities," 102). But he immediately restricts the scope of this principle so that it does not apply to cases where the offence is caused by the flaunting of abusive or insulting behaviour. In these cases those who are offended may only be a racial or religious minority, and the rest of society may be indifferent, and yet Feinberg believes that legal intervention is justified. Why should this exception be made? Feinberg's reply brings him close to a different principle, that offensive conduct may be prohibited if it gives rise to the likelihood of a breach of the peace. But in the end he veers away from this, and argues that the law cannot permit those who are insulted by offensive remarks to vent their anger in aggressive behaviour, but at the same time it is “burdensome” for them to live with their rage. Taken on its own, Feinberg's comment here allows too much intervention because members of a political party are often angered by the insults directed at the party and its policies, and may well also find it “burdensome” to live with their anger. But Feinberg introduces a second principle that the offensive conduct should not be prohibited [104/105] if those who are offended can avoid being offended without unreasonable effort or inconvenience. This is similar to the criterion we have just discussed.
For the purpose of identifying an act as an offensive nuisance, it seems enough to stick with our earlier criterion that it is an offensive act which is committed in a place frequented by those who are offended, and not easily avoidable by them. This applies to acts which are witnessed. offensive smells and sounds require a slightly different treatment, since the source of the offence may be in private homes, and not necessarily in places frequented by the general public. But sounds and smells travel from one's private place to those of others and to public places. The principle which provides the basis for legal intervention in offensive nuisances is the same in all these cases. It is a principle of fairness. People who live together in a society have to share at least part of their environment with others with whom they may have little else in common. What happens in and around the places where people live, work, shop, eat, entertain or are entertained, is of common concern so long as it is clearly visible, audible, or within smelling distance. To avoid such places involves a sacrifice of a person's daily and perfectly legitimate activities. Fairness demands that everyone should have a say in what the common environment should be, and the problem is to decide how people's conflicting demands are to be settled. But there is no reason why people with totally different outlooks and tastes must share a totally common environment. Thus where some wish to swim in the nude whereas others are offended by the sight of naked bodies, the simple solution is to have separate beaches catering for each grouNon-harmful acts committed out of sight and out of hearing and smelling distance of others are done in non-public space, and there is no reason why others should have a say in what goes on. Since there is no common environment here, the argument from fairness does not apply.
The identification of an act as an offensive nuisance does not automatically justify the legal prohibition of the act. Its being an offensive nuisance in the required sense merely establishes a prima-facie case for legal intervention. But [105/106] whether intervention is actually justified depends on the balancing of different considerations, and the claims of different groups. No doubt in many cases considerable weight has to be given to the preferences of the majority, but these preferences should not be allowed to override basic requirements of fairness and morality. A majority of whites who believe that it is all right for white couples to hold hands or kiss in public, but not for mixed couples to engage in similar acts, make a morally unacceptable distinction. The depth of the majority's offence need not be doubted. But there is no defensible principle of fairness or of morality which will support such discrimination. A law which discriminates in this way is as unjustified as one which prescribes a heavier penalty for a black man who rapes a white woman than for a white man who rapes a black woman.
Mill discusses offensive nuisances in one brief, and not very satisfactory, paragraph in On Liberty:
Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming thus within the category of offences against others, may rightly be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only indirectly connected with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so. 
He quite rightly points out that it is publicity of the act which is crucial, and that this class of acts includes both those which, when committed in private, are morally wrong, and those which are not. But he is too quick to place them “within the category of offences against others” in virtue of their being violations of good manners. For an important issue is whether “violations of good manners” can be considered a type of harm to others. According to the concept of harm Mill employs, and which I have discussed in Chapter 4, mere offence to others does not constitute harm to them. Public offensive acts do not harm others any more than private acts, although offence to feelings may be generally greater when acts are done in public than when they are committed in private. Mill gives the impression that these public acts are harmful to others because he is inclined to regard all justifiable [106/107] intervention in conduct as being based on the prevention of harm to others. But what lifts these acts into the category of acts which may be interfered with is not the mere fact that they are offensive to others, but the different fact that they are offensive nuisances in the required sense. So here we have a class of conduct which both does not harm others, and which at the same time falls within the legitimate scope of legal intervention.
evlin also attempts to rebut Mill's case for the extension of toleration from the religious sphere to other areas of conduct. He distinguishes between religious toleration and the toleration of those who violate the shared morality of society by claiming that religious toleration is practicable because each person regards the religion of others as a lesser good rather than as evil (121). But this fails to capture the depth of some religious differences. In any case, religious toleration also includes the toleration of atheists and agnostics, and the disagreements between some believers and militant atheists are much more profound that Devlin's account suggests. Devlin's argument carries the dangerous implication that religious toleration is not feasible or acceptable if we regard others' religion as evil.
To drive the wedge between religious toleration and what he calls “moral toleration”, Devlin also argues that we allow the law to punish the corruption of youth and public acts of indecency, whereas the religious conversion of a youth is allowed, and we do not try to suppress public religious ceremonies on the ground that they are offensive (120). But Devlin misunderstands the rationale of prohibitions on offensive nuisances. Public acts of indecency are only one type of offensive nuisances, and acts which do not violate the shared morality of society can also be regarded as offensive nuisances. We try to regulate the time and place for the performance of certain acts. Even religious ceremonies can become offensive nuisances if they are conducted at inappropriate times and Places. A noisy religious ceremony at a time when most people are asleep may be stopped, independently of whether we think the religion is true or false, good or bad. [107/108]
It is odd that Devlin should respond to Mill's case for the extension of toleration by bringing in the offence of corrupting youth. The treatment of children falls outside the area of toleration demanded by Mill's liberty principle. Mill argues that we are not entitled to interfere with the conduct of normal adults simply because we disapprove of it. But the treatment of children falls under the legitimate scope of intervention. So both in the area of religion and sex, the law may properly interfere with the conduct of adults towards children. But whether it should actually interfere in each case depends on balancing a number of considerations, with the interest of the children being the most important factor. It does seem to be the case that greater latitude is given to parents in the religious instruction of their children than in their sexual instruction. But this is not because we think that parents should have absolute freedom over their children in religious matters. The decision of a Christian Scientist not to allow a blood transfusion to be given to his dying child may be overridden, even though a similar decision in the case of the adult himself should be respected. But religion often plays such a pervasive role in the lives of religious people that to refuse parents the right to convert their own children is to exclude children from participation in many activities. This removes one source of a happy family life organized round common activities and interests. But it may be that parents have been given too much liberty in religious matters. If it were practicable, it would be desirable to prevent parents from indoctrinating their children (cf. Mackie, 182).
Last modified 1 May 2015