Legal Moralism Essay

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A long-standing debate within legal philosophy concerns the extent to which it is possible to make a clear distinction between law and morality. For some, while it might be true to say that the law is informed by moral perspectives, there is nonetheless at any given time a clear and unequivocal distinction between the law and morality. This perspective is associated with a legal positivist position and it is premised upon the assumption that the law represents matters that are of public significance, whereas morality is something that pertains to private matters.

Advocates of a clear separation between law and morality are thus committed to establishing and maintaining a distinction between public and private matters. For others there is a considerable degree of overlap and interplay between law and morality, between what is a public matter and what is a private concern. It suggests that between the notion of a public law and a private morality there is also something that equates to a public morality. This notion of shared, common values across society, which are not necessarily captured within laws, is the basis of the idea of legal moralism. Legal moralism thus captures the grey area between law and morality.

The importance of this concept within criminal justice contexts is the degree to which blurring the distinction between public and private establishes legitimate opportunities for criminal justice interventions into the lives of ordinary people. Advocates of a clear distinction between law and morality establish boundaries that limit state officials intruding into private and civic affairs. Interventions from this perspective are only justified to the extent that there are strong legal grounds to do so. It is not enough to establish that an intervention would be beneficial or helpful, or even that it would bring an end to suffering or hardship.

The debate regarding the distinction between law and morality is long-standing but the term legal moralism first appears in writing in H. L. A. Hart’s 1963 publication Law, Liberty and Morality. This publication arose from a debate between Hart and Lord Devlin following the publication in the United Kingdom of the Report of the Departmental Committee on Homosexual Offences and Prostitution in 1957 (the Wolfenden Report). Hart uses the term legal moralism negatively to challenge Devlin’s opposition to the report’s recommendations.

The Wolfenden Report had reviewed the law in the United Kingdom concerning homosexuality and prostitution and recommended the decriminalization of both. The argument presented in the report drew upon John Stuart Mill’s harm principle that had been set out in his 1859 publication On Liberty. The harm principle argues for maximizing the amount of private space afforded within society in order to allow individuals as much scope as possible to act according to their nature. On Liberty is seen as an unambiguous articulation of an argument in favor of limited government and an expression of individual freedom. Critics argue that Mill pays too much attention to the virtues of nonconformity and too little to the merits of social cohesion. Nonetheless, his harm principle had retained its significance within British society, and 100 years after its publication it was being used to justify the decriminalization of homosexuality and prostitution as set out within the recommendations of the Wolfenden Report. It was deemed inappropriate in the report to criminalize people’s sexual preferences, and to do so was seen as inconsistent with the underlying principles of common law if the sexual activities were performed in private by consenting adults.

There are undoubtedly virtues to the simplicity of Mill’s harm principle as a guide to justifying when it is, and when it is not, appropriate to compel an individual to act against his or her desires and his or her own sense of well-being. However, there are problems with the harm principle, not least in terms of what precisely constitutes harm and how it is defined. Likewise, it is not clear how to establish whether someone has been harmed.

These questions are central to the debate between Hart and Lord Devlin. Hart supported the findings of the Wolfenden Report and even argued that it should have gone further regarding its recommendations on the regulation of homosexuality. It has been argued by other critics that the report’s emphasis on what happens in private effectively allowed for the persistence of homophobic regulations in public life. Devlin on the other hand, suggested that it was appropriate and desirable to recognize the popular morality of the day as a legitimate basis upon which to legislate and that the law could be used legitimately to regulate the private lives of individuals in order to preserve social morality.

In more recent times it appears that the logic presented by Lord Devlin is becoming increasingly accepted and promulgated in many different forms. The liberal individualism underpinning Mill’s harm to others principle has been challenged and communitarian ideals have become much more influential within criminal justice contexts. Consequently, it becomes much harder to establish why society should tolerate the nonconformity of an individual if it conflicts with the majority view of a community.

Society has also broadened its understanding of what constitutes harm in comparison to the way Mill uses the term in the mid-19th century. Much greater weight is given to emotional and psychological harm. Likewise, society is much less demanding in establishing whether harm has occurred and more preoccupied with preventing its occurrence. Harm does not need to be as tangible or as self-evident in contemporary criminal justice contexts. Commonly, people are more willing to allow harm to be established through subjective accounts rather than having to ascertain objectively that harm has been caused. Indeed, society has become motivated much more by a willingness to seek out and redress harm. This is further reinforced by instilling within criminal justice officials a duty of care to protect victims of harm and a greater recognition and acknowledgement of victims within criminal justice contexts.

Consequently, legal moralism has become increasingly supported in a positive way to offset the perceived limitations and shortcomings of Mill’s harm principle. It fosters the idea that it can be legitimate and permissible for those in authority to intervene in an individual’s private life on moral grounds. Furthermore, it sets out the case for saying that there are times when those in authority know what is best, and it is on this basis that they are justified in compelling people to modify their behavior. Legal moralism in this sense is premised upon, and reinforces, a form of paternalism. It gives permission to criminal justice officials to intervene in people’s lives in the same way that parents have the authority to prevent their children from putting their hands in fire, to punish them when they are deemed to be naughty, and to impose upon them prescriptive measures regarding their general behavior.

Legal moralism has become influential because of the extent to which paternalism has become more dominant in society. Given the extent to which the rights of individuals became so prominent in the second half of the 20th century, and the recommendations of the Wolfenden Report are consistent with this development, legal moralism might have been expected to have to struggle to be so well established in the 21st century. Legal moralism might have been expected to be little more than a minority voice of opposition against the rights-led limitations placed upon governments that restricted their capacity to intervene in people’s lives. However, this has not been the case and legal moralism retains an important place within criminal justice contexts.

This is exemplified by the bans on smoking cigarettes in public places that have been introduced across numerous jurisdictions in the world. These bans have been largely premised upon a clearer understanding of the harm caused by passive smoking. As such they fit within Mill’s harm principle. However, using the harm principle to justify such bans also extends the understanding of what constitutes public space and conversely reduces what is understood to be civil society and private space. It also allows those in authority to take the moral high ground and to present themselves as knowing what is best for the well-being of all.

The 21st century is arguably a time of significant social change, and it is in this context that legal moralism comes to the fore. The blurring of public law and private morality may become a feature of many more criminal justice debates over the coming years. Prominent among those will undoubtedly be issues of sexual conduct, recreational drug use, and, within the context of terrorism and political violence, issues of political dissent.


  1. Brink, David O. “Retributivism and Legal Moralism.” Ratio Juris, v.25/4 (2012).
  2. Devlin, Patrick The Enforcement of Morals. Oxford: Oxford University Press, 1965.
  3. Hart, H. L. A. Law, Liberty and Morality. Palo Alto, CA: Stanford University Press, 1963.
  4. Mill, John Stuart. On Liberty, Gerald Dworkin, ed. Lanham, MD: Rowman & Littlefield, 1997. [1859].
  5. Nielsen, Morten Ebbe Juul. “Requirement-Sensitive Legal Moralism: A Critical Assessment.” Ratio Juris, v.25/4 (2012).
  6. Ristroph, Alice. “Third Wave Legal Moralism.” Arizona State Law Journal, v.42/4 (2011).

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