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Law, Morality and Religion in a Christian Society*

Published online by Cambridge University Press:  24 October 2008

T. A. Roberts
T. A. Roberts
Affiliation:
Professor of Philosophy, University College, Aberystwyth
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Extract

The publication in 1957 of the Wolfenden Report occasioned a celebrated controversy in which profound theoretical issues concerning the relation between law and morality, and the legal enforcement of morality were discussed. The principal disputants were Lord Justice Devlin (Sir Patrick Devlin as he then was) and Professor H. L. A. Hart. It is by now well known that the main recommendation of the Wolfenden Report was the reform of the criminal law so that homosexual behaviour in private between consenting male adults should no longer be a criminal offence. As homosexual behaviour in Christendom was at the outset punishable in the ecclesiastical courts, and subsequently, with the demise of the ecclesiastical courts, in the secular courts, the Wolfenden recommendation on homosexuality marked a major departure from the prevailing state of affairs in which the precepts of Christian morality, especially relating to sexual morals, were at first enforced by the ecclesiastical courts, and then by the secular courts.

Type
Articles
Information
Religious Studies , Volume 20 , Issue 1 , March 1984 , pp. 79 - 98
Copyright
Copyright © Cambridge University Press 1984

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References

page 79 note 1 Report of the Committee on Homosexual Offences and Prostitution.

page 80 note 1 Wolfenden Report paragraph 62, and Mitchell, Basil, Law, Morality and Religion in a Secular Society, p. 2.Google Scholar

page 80 note 2 Devlin, Patrick, The Enforcement of Morals (Oxford, 1965).Google Scholar

page 80 note 3 Strictly speaking the legal entity is ‘England and Wales’. Scotland is another and different legal entity. Thus when the law of England and Wales on homosexuality was reformed so that homosexual conduct in private between consenting male adults ceased to be a criminal offence, the homosexual law of Scotland remained unreformed for several years.

page 80 note 4 Cf. Hale, Lord Chief Justice, ‘Christianity is parcel of the laws of England’. (1976).Google Scholar

page 81 note 1 Devlin, , op. cit. p. 7Google Scholar, and Mitchell, , op. cit. p. 41.Google Scholar

page 81 note 2 ‘That the only purpose to which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’, Mill, J. S., On Liberty, chap. IGoogle Scholar. The edition of Mill used has been, Mill, John Stuart, Three Essays, edited with introduction by Wollheim, Richard (Oxford, 1975).Google Scholar

page 82 note 1 Hart, H. L. A., Law, Liberty and Morality, (Oxford, 1963), p. 22.Google Scholar

page 82 note 2 Ibid. p. 72.

page 82 note 3 Idem, p. 72.

page 82 note 4 Ibid. p. 73.

page 82 note 5 See Hart, H. L. A., The Concept of Law (Oxford, 1961).Google Scholar

page 82 note 6 Law, Liberty and Morality, p. 73.Google Scholar

page 83 note 1 Ibid. p. 58.

page 83 note 2 Henkin, Louis, ‘Morals and the constitution: the sin ofobscenity’, Columbia Law Review, LXIII I (03 1963), 391–414.CrossRefGoogle Scholar

page 83 note 3 Henkin, ibid. pp. 408–9.

page 83 note 4 Ibid. p. 410.

page 84 note 1 Ibid. p. 411.

page 85 note 1 To borrow Hart's term.

page 86 note 1 Published as Law, Morality and Religion in a Secular Society (Oxford, 1967).Google Scholar

page 89 note 1 Hart, , op. cit. p. 27.Google Scholar

page 89 note 2 In Italy divorce and abortion are now legal, although strenuous efforts are being made by the Church to have the abortion law repealed. In Spain divorce is legal, and the campaign for legalizing abortion is arousing fierce controversy. Movements, especially feminist, are afoot to reform the law which made adultery punishable, not least because in practice prosecutions against adulterous wives were frequent and penalties heavy whereas prosecutions against adulterous husbands few and punishments light.

page 90 note 1 For the distinction between moral rules and ethical ideals, see Strawson, P. F., ‘Social Morality and Individual Ideal’ in his Freedom and Resentment (London: Methuen, 1974).Google Scholar

page 91 note 1 See Mitchell, , op. cit.Google Scholar

page 91 note 2 For example, Hughes, Graham, ‘Morals and the criminal law‘, Yale Law journal, LXXI, I (1961), 675f.Google Scholar

page 92 note 1 Devlin, , The Enforcement of Morals, p. 15.Google Scholar

page 93 note 1 For convenience, I shall omit in the sequel the expression, ‘positive ecclesiastical law’, although this should be understood wherever the expression ‘positive law’ is used.

page 93 note 2 Matt, . 5: 48.Google Scholar Rashdall comments, ‘we must suppose the words to mean “all-embracing, universal, undiscriminating in your charity” rather than “faultless” or “sinless”’ Rashdall, Hastings, Christ and Conscience (London, 1916), p. 113.Google Scholar

page 94 note 1 Cf. Mill's, ‘tyranny of the majority’, On Liberty, chap. I.Google Scholar

page 95 note 1 Cf. Geach, Peter, ‘The moral law and the law of God’ in his God and the Soul, (London, 1969), p. 121.Google Scholar

page 96 note 1 In developing the model, for working purposes, I assigned the role of deciding upon ‘matters indifferent’ in sexual morals to positive ecclesiastical law, but there is no compelling theoretical reason for this choice.

page 96 note 2 Anthony Kenny in a series of lectures on ‘Faith and Reason’ delivered at Aberystwyth.