H.L.A. Hart, answered from the texts and cited to the page.
The use of legal coercion by any society calls for justification as something prima facie objectionable, something to be tolerated only for the sake of some countervailing good. This is the harm principle I take from Mill's On Liberty: the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others.1
Lord Devlin had argued, against the Wolfenden Committee's recommendation that consensual homosexual conduct between adults in private should cease to be criminal, that a recognised morality is necessary to a society's existence and that the criminal law may rightly be used to enforce that morality.23 The argument fails at two points. First, there is no evidence that legal toleration of private immorality dissolves the social bond; the claim is empirically empty and the analogy to treason equivocates between threats to a society's institutions and threats to its dominant moral attitudes.
Second, even if a society is identified with its dominant moral code — and that identification is itself suspect — there is nothing alarming in moral change; moralities change, societies persist with different moralities. To use the criminal law to enforce a positive morality merely because it is the morality of the dominant section is to inflict the suffering of criminal punishment without sufficient countervailing good.
The position admits a qualification for paternalism in narrow forms: where consent does not legitimise serious bodily harm, where the young must be protected from sexual conduct before they can form considered judgements, where addictive substances impair the autonomy they would extend. The qualification is real but narrow.45
He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others, to do so would be wise or even right." This doctrine, Mill tells us, is to apply to human beings 2 On Liberty, Chapter 1. 3 /bid. only "in the maturity of their faculties": it is not to apply to children or to backward societies.Law, Liberty, and Morality, pp. 13–14
Devlin 1 7. But he offers no evidence that in these circum· stances the legal toleration of homosexuality would in fact endanger society's ex istence. Contrast the foregoing with the principles applied by Lord Devlin to fornication in relation to which 'feeling may not be so intense'.Social Solidarity and the Enforcement of Morality, p. 264
And they are aware of the danger that the moral opinion of a society on certain matters may change and leave an unpopular law both difficult to 36 enforce and difficult to repeal. All these practical objections they concede while maintaining that the bare fact that conduct contravenes a society's moral code is enough to justify its punishment by the criminal law.The Morality of the Criminal Law, p. 37
He puts it forward as a principle, rationally acceptable, to be used in the evaluation or criticism of social institutions generally.Law, Liberty, and Morality, pp. 29–30
It is natural to wonder what it is that makes for such continuities which do not seem to depend on one generation of judges reading what an earlier generation wrote. Is this persistence explicable in terms of social origin, education, or the conditions and status of an English judge's office?The Morality of the Criminal Law, p. 36
The Hart-Devlin debate is the canonical mid-twentieth- century English-language engagement of liberalism with legal moralism. The Hartian position, restating Mill's harm principle with the paternalism qualification, became the dominant view in liberal jurisprudence and informed the decriminalisation of homosexual conduct, the relaxation of obscenity laws, the divorce reforms, and the broader liberalisation of the law of personal conduct in the United Kingdom and beyond between 1955 and 1970. Devlin's social- disintegration thesis has been criticised on empirical and conceptual grounds. Feinberg's four-volume The Moral Limits of the Criminal Law extends the Hartian project systematically. Contemporary debates on drug policy, sex work, and the legal enforcement of sexual morality continue to turn on the Hart-Devlin axis.