The Radical Center
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The Radical Center

The Moral Assault on Morality

A few years ago Liberty Fund republished an anti-libertarian book, The Enforcement of Morality by Lord Patrick Devlin. While Liberty Fund has not been openly libertarian it was fundamentally classically liberal in nature and never, to my memory at least, engaged in the publication of books which were assaults on libertarian values. Their publication Devlin is just that.

While they talk about the importance of this book in the debate on same-sex marriage it should be clear Devlin was defending the criminalization of homosexuality. This means the arrest, prosecution, and punishment of individuals who have violated the rights of no one. Devlin argued this on the principle that some sort of “societal right” is violated. Packed into that is the assumption “society” as a collective body has rights exceeding those of any individual member. While my individual rights are not violated by someone’s private sexual athletics, my rights as part of the collective called “society” is violated in the same manner as my individual rights would be if someone punched me in the nose.

What nonsense! If you punch me in the nose I feel direct pain. It may bleed. You may break it. You must do something to me for this to happen. But, if you have a sexual liaison in the privacy of your own home, one I know nothing about, and was no party to, exactly how is it that my collective “social” right was violated? Hayek argued the term “social justice” is an absurdity. He said: “‘Social justice’ is necessarily empty and meaningless.” But, so too, is Devlin’s concept of social rights, and for similar reasons.

Devlin, who joined a Catholic order as a young man but left it, argued widely held opinions, no matter how they are derived, are shared values holding a society together. Any private activity that violates those values threatens the social fabric, in Devlin’s mind. So even bigoted, and prejudicial views, if widely held would seem to warrant special legal protection. (More on that matter shortly.)

In Devlin’s mind, because enough people in 1950s England thought homosexuals were disgusting, to not inflict legal punishment on people for being homosexual, is somehow an assault on all the people who are disgusted with the activity. I would wonder how Lord Devlin would respond if the widespread prejudice were against Catholics such as himself. Certainly, in the period of colonial America this was precisely the case, right down to having laws forbidding Catholics to reside in certain colonies. The same is true for Devlin’s England. What I tend to find, however, is people who hold Devlin’s view always manage to exclude themselves from such categories.

It is important to cover what inspired Devlin to launch his defense of collectivist rights. In 1950s England there was a rash of gay men who were being prosecuted for being homosexual. Of course, this went back much further. One remembers Oscar Wilde was charged with being gay in 1895 and sentenced to two years in prison at “hard labor.” The sentence was harsh and destroyed Wilde’s health. He collapsed and burst an ear drum and spent two months in infirmary as a result. After his release in 1897 he was in extremely poor health and eventually died as a result of it in 1900, at the age of 46. He was bankrupted and lost all contact with his sons, whom he loved dearly, and who loved and missed him. His prosecution destroyed Wilde and his family. That is what Devlin was defending!

The persecutions of gays in the 1950s revealed precisely how the law encouraged blackmail and extortion. This sort of victimization of gays by the criminal classes was portrayed well in the 1961 Dirk Bogarde film Victim. I have the film here, if you wish to see it.

The common moral thread Devlin was defending actually made criminality possible. It encouraged the blackmailer and the extortionist. It led to suicides and destroyed lives. Such was Devlin’s moral order.

As a result of these incidents the British government created a committee to study the matter of homosexuality and prostitution and what the law should say about these matters. Headed by Lord Wolfenden the committee of socially acceptable individuals held hearings, including speaking to individuals who had been victimized because of the laws in question. The committee issued its report arguing a classically liberal position: “It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour. Even after this Report it took the British government another decade to abolish these laws, and in Scotland they remained in place until 1980. It should be noted Wolfenden was himself quite anti-gay and that matters were not helped when his son, Jeremy, told him he was gay himself.

Devlin believed all morality must come from religion. He wrote, “Morals and religion are inextricably joined — the moral standards general accepted in Western civilization being those belonging to Christianity.” He wrote no moral code “can claim any validity except by virtue of the religion on which it is based.” In other words, there is no rational code of morality, merely religious preferences all of which are valid merely because the proponents of those codes extol them in the name of a deity.

Even crimes, Devlin said, are not offenses against the individual, but are only crimes because they are offenses against the collective concept called society. “Now, if the law existed for the protection of the individual, there would be no reason why he should avail himself of it if he did not want it. The reason why a man may not consent to the commission of an offense against himself beforehand or forgive it afterwards is because it is an offence against society. It is not that society is physically injured; that would be impossible. Nor need any individual be shocked, corrupted, or exploited; everything may be done in private.” What makes a crime a crime, says Devlin is “that there are certain standards of behavior or moral principles which society requires to be observed; and the breach of them is an offense not merely against the person who is injured but against society as a whole.”

What it comes down to, for Devlin, is a crime is a crime because society doesn’t like it. What society doesn’t like is the collective presumptions of people, but only those based on religious precepts, without reason or logic, or any underlying principle. Morals are morals for no other reason than religious people say they are—no one else matters. Criminal law enforces moral principles, not because any right is violated, but because religious people want it. There have always been classical liberals who doubted the moral consensus of a society, but that is irrelevant to the likes of Devlin. These dissenting opinions should be shunted aside in favor of the collective morality, as expressed by the common man of the era, provided he is religious.

Look how pathetic that argument is. Consider the England of today, which is vastly different from that of Devlin’s times. Today the moral consensus is not Christian. There is a widespread social acceptance that discriminatory practices are wrong. By Devlin’s own logic the Christian who discriminates against the homosexual today should be restricted by the law, and punished if he indulges is own personal judgment. Individual rights, Devlin argued, don’t matter. Only the social consensus. Today that consensus would put the likes of Devlin in the docket for living up to religious moral principles.

Of course, the loophole Devlin wrote for himself and his opinion is only religious opinions count when it comes to the social consensus. A consensus based on secular values is automatically excluded. Yet it was precisely religious values in the past that allowed for the persecution of Catholics in England and the United States. To make matters worse for Devlin’s argument it was religious opinion that most threatened the freedom of religion.

I quote something I wrote on the rise of toleration in the West:

Luther is a good example of Protestant intolerance. In 1525 he said Catholic mass should be forcibly suppressed as blasphemy. In 1530, he said Anabaptists should be put to death. In 1536, he advocated Jews should be forced out of the country. His view was the State should enforce Christian teaching, more particularly Luther’s teachings, by force. “The public authority is bound to repress blasphemy, false doctrine and heresy, and to inflict corporal punishment on those that support such things.”

Many people today have no idea that Europe was plunged into a series of wars, over a period of about 150 years, all between competing sects of Christians intent on wiping out each other. The last such major war was the Thirty Years’ War, from 1618–1648. Direct and indirect casualties in the war amounted to between 15% and 30% of all Germans. In Czech areas, population declined by about one-third as a result of the war and as a result of diseases spread because of the conflict. It is thought Swedish armies destroyed as many as one-third of all towns in Germany. Estimates are this period of Christian conflict resulted in the deaths of 7 million people. R.J. Rummel estimates the death toll higher, at 11.5 million. An objective look at the history of Christian conflicts caused Prof. Perez Zagorin to conclude: “Of all the great world religions past and present, Christianity has been by far the most intolerant.” Even Aquinas, held up as an advocate of reason, said that if the state executed forgers it could “with much more justice” take heretics and “immediately upon conviction, be not only excommunicated but also put to death.” Zagorin says: “None of the Protestant churches — neither the Lutheran Evangelical, The Zwinglian, the Calvinist Reformed nor the Anglican — were tolerant or acknowledged any freedom to dissent.” [How the Idea of Religious Toleration Came to the West, Princeton University Press, 2003.

Just during the short reign of England’s Catholic Queen Mary I (1554–1558) some 300 Protestants were burned at the stake for heresy. In 1572 Catholics in France went on the rampage over a period of several weeks, rounding up and massacring Protestants. Death tolls are uncertain, but believed to range from 5,000 to 30,000. Of course, in the name of Jesus, neither women nor children were spared the sword.

Who would defend Devlin from such prosecution? — the very classical liberals whom he castigates and attempts to refute in his book. The classical liberal or libertarian would argue the Devlinite Christian, like the homosexual of 1950s England, has individual rights and society as such does not. The liberal would argue, as John Stuart Mill did, that the function of government is to protect people from one another and otherwise leave them free to control their own lives. Proper liberalism would defend both homosexuals in a homophobic culture and Christians in a secular one.

Oddly it is Devlin’s legal theories that dominate today in England; not those of the Wolfenden Report. Devlin basically won the legal battle. The law in England today does not protect individual rights, it protects the right of society to say what is acceptable and what isn’t. And today that means prosecuting Christians for holding to the moral code that Devlin advocated. In other words, his own legal theory undermines the ability of Christians to follow Devlin’s moral code. Sure, when Devlin argued his theory, he assumed his Christian morality would dominate. One has to wonder whether he would realize his errors, if he were alive today.

Devlin said “it is not possible to set theoretical limits to the power of the State to legislate against immorality.” At the time he assumed his view of immorality would dominate. Today in England, it doesn’t. So what are Christians clamoring for? — limitations on the power of the state to legislate against immorality. Except today the immorality is that of bigotry, prejudice and discrimination against gays.

Devlin says the power of the State is unlimited, at least not limited by any theory. Devlin has no objective definition of morality at all. For it is “what every right-minded person is presumed to consider to be immoral.” So, in a secular world, if right-minded people believe faith to be an immoral means by which people evade thinking, then faith would be immoral and legally sanctioned. Devlin pretty much dismisses reason; he says: “It is the power of commons sense and not the power of reason that is behind the judgements of society.” It is as if he is living up to the very worst of what Ayn Rand called the “whim worshipper.”

Devlin says because there is a “general abhorrence of homosexuality” and because people find it “a vice so abominable that its mere presence is an offense” he concludes, “I do not see how society can be denied the right to eradicate it.” What does it mean to eradicate it? The only way to “eradicate” homosexuality is to exterminate all homosexuals, and even that will be only temporary as nature continues to allow gay children to be born. No law can prevent people from being born homosexual any more than the laws of the Third Reich could prevent people from being Jews. But, what of the culture that now dominates much of Western civilization, where bigotry and prejudice is seen as abominable and inherently offensive?

Devlin may have thought he was defending Christian morality with his arguments. What he was defending was the concept that individuals do not have rights, that rights reside in collective bodies, and that the social collective has the right to use force against anyone who offends the majority opinion in that society. Devlin justified the very legal situation Christians in England claim to find themselves in today. They may be Devlin’s religious heirs, but it is his legislative heirs who are allegedly tormenting them. Classical liberal rights theories cut through that. Liberalism would have opposed the persecution of homosexuals in England in the 50s, and it would oppose the prosecution of Christians today. Devlin’s religious descendants would benefit from a modern Wolfenden Report once again calling for a separation of private morality from the realm of the law.

The great irony of the Devlin/Wolfenden debate is that Devlin’s ideas won, but it is his religious heirs who suffer because of it, not homosexuals. Every legal structure should be built as if one’s worst enemies would control it. If that is done, the rights of all will be protected.

Update: Indianapolis Monthly has run a piece on Liberty Fund and it’s move toward more Trumpian right-wing politics. Some of the staff were disturbed when the foundation published Devlin’s rather authoritarian work and started to vocalize opposition to the drift away from classical liberalism. They wrote,

the decision to republish the book appalled a number of the fellows. One even organized a private book burning in which he invited opponents of the text to an outdoor area near his office. There they read aloud the offensive passages, tore pages from the book, and burned them in a small gas stove. In a statement provided to Indianapolis Monthly, the Liberty Fund board of directors wrote that the book’s central question — whether the law should enforce public morality — is a serious and important question about which reasonable people disagree. The Fund explained that Lord Devlin’s book had gone out of print while the book arguing against Devlin’s views was still available. According to the Liberty Fund board of directors, making Devlin’s arguments available by printing the book, and thereby making reasoned debate possible, is essential to the Fund’s mission and consistent with Goodrich’s intent.

Up until this point in time the texts they published were not debates with all views presented but classical, mainly classical liberal texts. The “debate” excuse only arose when the drift toward conservatism started, and it is has gotten worse, with a blog site they run skirting more Trumpian themes—something that goes entirely against their classical liberal founding as well as the original goals of the foundation. In a nutshell they betrayed classical liberalism.

Staff who were concerned about this were fired in another example of conservative cancel culture—they always project onto others they own deepest flaws. One of those staff was Nico Maloberti who chronicled the departure from classical liberalism toward a Trumpian agenda. He continually pleaded with the Fund to return to its roots. One day, on his way to work, he was caught in a traffic jam and called in to tell them he was stuck and would be late. He was told not to bother. He know longer had a job, much as many of those who still clung to classical liberal values were dismissed. Maloberti soon had no need for a job, he took his own life.

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James Peron

James Peron

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.