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Published online by Cambridge University Press: 24 January 2025
1 E.g. Law, Liberty and Morality (1963); ‘The Enforcement of Morality’ (LectureII in The Morality of the Criminal Law (1965)).
2 Chapter 5, published as‘ Law, Democracy and Morality’, (1962) 110 U.Pa. L. Rev., 635, and Chapter 6 published as ‘ Mill on Libertyin Morals ’ (1964) 32 U.Chi.L.Rev. 215.
3 His assertion that ‘ a landlord who discovers his lodgers are living in sin must tum them out or else rely on their sense of honour for the rent’ (52) is one of his many exaggerations.
4 E.g. Rookes v. Barnard [1964] A.C. 1129, followed in Uren v. John Fairfax & Sons Pty. Ltd. [1965] N.S.W.R. 202; H. West and Sons Ltd. v. Shephard [1964] A.C. 326 (Lord Devlin's dissenting judgment was recently followed by the High Court in Skelton v. Collins (1966) 39 A.L.J.R. 480).
5 (1960) 78 W.N. (N.S.W.) 122.
6 But see now Painter v. Painter (1963) 4 F.L.R. 216, discussed by A. Cirulis in (1964-65) 1 F.L.Rev. 155 and by Stone in his Social Dimensions 0f Law and Justice (1966) 310-312.
7 A Bill to allow divorce on very restricted grounds was recently introduced into the Italian Parliament by a Social Democratic Deputy but it is reported to have ‘ aroused strong criticism from the Roman Catholic Church’ and further discussion has been postponed ‘ indefinitely’: Canberra Times, 7 May, 1966.
8 Law, Liberty and Morality (1963) 34-38.
9 Op. cit. 35.
10 Hart, Op. cit. 34-38.
11 Whether, in the event of a conflict between ‘ Christian morality’ and ‘the common morality’, Devlin would adhere to hispresent views or whether he would adopt some form of liberalism, or some form of authoritarianism for the ‘ Christianly moral good’ of the‘ vice ’-ridden majority, is an interesting question. If he would not adhere to his present views we would be entitled to question the sincerity of his philosophy.
12 op. cit. 135, and 132-3 where he gives an odd interpretation of Mill's view (cf. Hart, Ope cit. 31).
13 Of course, such interference used to be, and in some quarters still is, rationalised as being for the sakeof the ‘ real ’ happiness ofthe victims, or for the sake of their supposed happiness in some ‘after-life’ in which the victims do not believe. Even Devlin does not resort to these arguments in his book.
14 Customs (Prohibited Imports) Regulations reg. 4 and Second Schedule (Item 22), and reg. 4A; Custom (Cinematograph Films) Regulations reg. 13; Post andTelegraph Act 1901-1961, SSe 43-44.
15 Hart, The Morality of the Criminal Law, 47-9.
16 ‘Direct’ harm in Mill's theory: On Liberty (Everyman edition), 75.
17 ‘ He cannot rightfully be compelled … because it will make him happier …’, Op. cit. 73.
18 What is in substance a kind of ‘ psychological paternalism ’ was undertaken by the VictorianParliament with scarcely any public dissent in the Psychological Practices Act 1965 (Vic.) on the ground that warnings were not a sufficient protection against psychological and other alleged dangers of ‘Scientology’, and that it should therefore be banned.
19 It is surprising, as Glanville Williams has recently remarked in [19661 Crim. L.R. 132, that Devlin has not revised his lectures despite the many cogent criticisms of his Maccabaean Lecture. On specific crimes. G. Hughes in ‘Morals and the Criminal Law’ (1961) 71 Yale L.J. 662 makes some valuable objections to Devlin's original lecture.
20 Hart's latest publication, The Morality of the Criminal Law (1965), consists of lectures given in Jerusalem in 1964 before the appearance of Devlin'sbook.
21 R. v. Jellyman (1831) 8 C. & P. 604.
22 E.g. Crimes Act, 1900 (N.S.W.), s. 79.
23 Veslar v. R. (1955) 72 W.N. (N.S.W.) 98 (Court of Criminal Appeal).
24 Referred to in Hart, Op. cit. 38-9.
25 The Economist, May 29, 1965, 1012.
26 Devlin himself admits in his Preface (vi) that he ventured into the realm of secular philosophy in his Maccabaean Lecture to the British Academy without having read Mill's On Liberty from beginning to end, and that he had not even heard of Stephen's Liberty, Equality and Fraternity.
27 It is interesting to note that s. 81A of the Crimes Act, 1900 (N.S.W.) was enacted as recently as 1955. The Attorney-General stated that it had been approved by the District Court judges, the Commissioner of Police and the Bar Council (N.S. W.) Parliamentary Debates (Third Series) Session 1954-5, 3230) and it was enacted with scarcely any debate except some vigorous dissentfrom Dr. L. J. A. Parr, M.L.A. This new section was designed inter alia to make N.S.W. law coincide fully with s. 11 of the Criminal Law Amendment Act 1885 in England where, in 1957, the Wolfenden Committee recommended the substantial abolition of that very offence.