Patrick Devlin (1905–1992)

Lord Devlin was judge of the Queen's Bench and elevated to Lord of Appeal in 1961. Seven essays consider moral law in relation to the laws of crime, tort, contract and marriage.

Morality depends heavily upon religion, but in a secular society, law is no longer justified by religious belief. Lord Devlin argues that the law must be concerned with the facts of common morality rather than with any abstract conception of philosophy or religion expounding what it "ought" to be.

The law-maker must determine what the common morality/belief is, not the "true belief". Those who serve the law have a duty to defend "the law as it is, morality as it is, freedom as it is -- none of them perfect, but the things that their society has got, and must not let go".

Strong argument against attempts to impose prohibitions on homosexual conduct. Lord Devlin invokes the liberal doctrine of the utilitarian, John Stuart Mill ("On Liberty").

Mill thought to resolve the struggle between liberty and authority that is inherent in every society with a settling definition of the limits of the power that can be legitimately exercised over the individual. [103] This principle is: The sole end for which mankind are warranted in interfereing with the liberty of action of any of their number, is self-protection. To prevent harm.

The Wolfenden committee recommended that homosexuality between consenting adults should no longer be criminal. The House of Commons in 1960 turned it down by a large majority. Mills' doctrine made no conquest here. [126]

Professor Hart "acknowledges the innocuous conservative principle that there is a presumption that common and long established institutions are likely to have merits not apparent to the rationalist philosopher. [127]

Considers 8 specific crimes: bigamy, cruelty to animals, homosexuality, abortion, bestiality, incest, obscenity (pornography), and the commercialization of vice-- prostitution, pimping, poncing, brothel-keeping.

Professor Hart is silent about all, but he would abolish the criminalization of homosexuality between consenting adults. [128]

Morality does not enter into Mill's doctrine. [130] Hart "wholeheartedly supports the Wolfenden Committee's recommendation that the law against homosexuality should be repealed on the ground that it is not the law's business."

Takes Professor Hart to task for not adapting Mills' doctrine to other "crimes".… (mere)