Legal Commentary

Reasonable people today believe that H.L.A. Hart had the better of Patrick Devlin in the debate over the criminalization of homosexuality.  An over-simplified little re-cap.  Lord Devlin, one of the arch-legal-moralists of his day (though much of what he stood for was said earlier, and far better, by Sir James Fitzjames Stephen), believed in the vital importance of some common, fundamental moral agreement for the survival of a society.  Conduct that violated this reservoir of common moral agreement ought to be criminalized, even if it did not violate Mill's harm principle.  The coercive power of law ought to be used to protect and fortify this shared moral terrain, as a mechanism of social self-preservation.  Hart's position in the debate (following Mill) was essentially to challenge the view that this sort of substantial moral consensus is necessary for the survival of a liberal state.  Yes, the legal enforcement of certain moral values (life, property, public safety) was necessary; but it is wrong, as well as unnecessary, for the state to use the rough engine of criminal law to protect the moral reservoir outside of these areas.  In the area of the criminalization of homosexual sexual relationships, Hart won.

But the veil controversies in Europe represent, I think, an impending victory for Lord Devlin, and perhaps one that portends other such victories in the future.

Here's a bit of Devlin to get warmed up: "There is [social] disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions."  When a certain practice elicits a deeply felt disgust, a sense of revulsion by the common or reasonable man, then we have reached, for Devlin, "the limits of tolerance." 

This is an important of the reaction to the veil now at play in certain Western European quarters.  This opinion piece in Le Monde from a few days ago by Professor Jean-Louis Halpérin, expresses well the Hartian position with respect to the question whether the burqa should be criminalized.  Note toward the end of the piece where Halpérin argues that the ban encroaches on private life and the right of people to choose their own 'life-styles.'  This is a distinct echo of the Millian/Hartian view.  And it is a view that has been thoroughly chastened by the opposition and a society that sees itself and its core values under threat.  The burqa is only really an external symbol of that threat -- it isn't really what Western Europeans are concerned about.  The no-burqa fine set to go into effect in the fall is quite modest; one assumes it would be a considerably more serious penalty otherwise.  What they're really worried about is the loss of cultural cohesion that Muslim immigration represents.  And they are right to worry -- the kind of immigration patterns that countries like France are witnessing portends nothing less than a dramatic change in the cultural make-up of Western Europe.

It's true that one might make the argument that this is really about public safety, and so bring it back within the sorts of values that Hart believed were the proper subject of criminal enforcement.  But that argument is not powerful enough to explain the intensity with which the ban is supported -- it's not like we've witnessed an unrelenting rash of crime by burqa-clad hoodlums (though there have been some of these). 

It may also be that Hart's view is in practice limited to the criminal regulation of certain forms of sexual morality -- perhaps only homosexuality -- I don't think we're anywhere close to seeing prostitution de-criminalized (though maybe the Europeans are closer).  When we're dealing with egalitarian values, liberal states are more prepared to regulate (though still rarely, I think, with criminal sanction).

To me, the cardinal force at work here is clearly Devlinian.  And given the nature of the politics now in play, immigration patterns, and the general cultural sensitivities taken to be under threat by an alien population, I predict more Devlin and less Hart in these and other future conflicts.