ENFORCEMENT OF MORALITY

The question of whether the law ought to enforce morality has been an issue of philosophical
debate for some time. John Stuart Mill's assertion that the only justification for limiting one person's
liberty is to prevent harm to another represents a starting point in the discussion, but his principle is
not universally accepted within the philosophical community and certainly is not applied in the real
world. Private consensual homosexual behaviour is a recurring focus of this debate: it was the focus
of the governmental report in Britain in 1965, which prompted Lord Patrick Devlin to explore the
issue, and remains a common example of private activity which society seeks to regulate solely on
the basis of its immorality.
John Stuart Mill
John Stuart Mill, (20 May 1806 8 May 1873) was a British philosopher, political economist and civil
servant who introduced the harm principle holds that the actions of individuals should only be
limited to prevent harm to other individuals. John Stuart Mill articulated this principle in On Liberty,
where he argued that, "The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others." Mill sees harm and
wrongdoing as synonymous. Even if a self-regarding action results in harm to oneself, it is still
beyond the sphere of justifiable state coercion. Harm itself is not a non-moral concept. The infliction
of harm upon another person is what makes an action wrong. According to Mill, an individual 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 opinion of others, to do so would be wise, or even right. The only
part of the conduct of anyone, for which he is amenable to society, is that which concerns others.
THE WOLFENDEN REPORT
In 1954 the Home Secretary of the U.K. responded to prior requests to investigate the law relating to
homosexuality (after a number of high profile arrests (including Sir John Gielgud) and sensational
trials, and a significant increase in the number of prosecutions for sodomy, indecent assault and
gross indecency) by appointing a committee of 14 persons to investigate the law relating to
homosexual offences and prostitution. The committee was headed by Sir John Wolfenden, then Vice
Chancellor of the University of Reading.
The Report of the Departmental Committee on Homosexual Offences and Prostitution (1957),
otherwise known as the Wolfenden Report, recommended that "homosexual behaviour between
consenting adults in private should no longer be a criminal offence", and it recommended that
prostitution not be made a criminal offence. As it said:
"there must remain a realm of private morality and immorality which is, in brief and crude terms,
not the law's business. To say this is not to condone or encourage private immorality."
The Report argued that even though homosexual activity is immoral, nevertheless, the function of
the criminal law is not to punish immorality, but instead to preserve order and decency. One way of
understanding this argument, then, is to say that so long as immoral activity does not interfere with
public order and decency, so long as immoral activity is not "offensive or injurious", it should be
ignored by the law.
The recommendations of the Report were not, in fact, acted upon by the Government. Only years
later, in 1967, did the Government pass the Sexual Offences Act, by a very narrow margin, which
replaced the 1861 Offences Against the Person Act. Even then the law applied only to England and
Wales.

Lord Devlin
In The Enforcement of Morals Lord Devlin, a British judge, responded to the then-recently published
Report of the Committee on Homosexual Offenses and Prostitution (the Wolfenden Report) which
advocated decriminalizing consensual homosexual activity between adults in England. The drafters
of the Wolfenden Report asserted that, unless the legislature was willing to equate crime and sin,
"there must remain a realm of private morality and immorality which is . . . not the law's business."
Devlin interpreted the Committee's position to mean that "no act of immorality should be made a
criminal offense unless it is accompanied by some other feature such as indecency, corruption or
exploitation."
1. Devlin argues that a society's existence depends on the maintenance of shared political and
moral values. Violation of the shared morality loosens one of the bonds which hold a society
together, and thereby threatens it with disintegration. Law without morality, said Devlin
destroys freedom of conscience and is the paved road to tyranny. Devlin appealed to the
idea of society's "moral fabric." He argued that the criminal law must respect and reinforce
the moral norms of society in order to keep social order from unravelling.
a. The criminal law may therefore be invoked to protect this shared morality in the
same way as it is used against treason and sedition; Breaches of the shared morality
do not cause harm to other individuals in the way that murder and assault do, but
none the less they harm society by undermining its moral structure. Even acts like
homosexuality between consenting adults in private can threaten the existence of
society, and therefore society has the right to suppress them.
2. As far as possible there should be toleration of individual liberty. Devlin believes that "the
limits of tolerance" are reached when the feelings of the ordinary person towards a
particular form of conduct reaches a certain intensity of "intolerance, indignation and
disgust". If, for example, it is the genuine feeling of society that homosexuality is "a vice so
abominable that its mere presence is an offence", then society may eradicate it. Devlin
argued that immorality is what every right-minded person considered immoral. Devlin
argued that there could be no theoretical limit to the reach of law; no acts are none of the
laws business.
3. Devlin believes that violations of the shared morality result in two types of harm to society - tangible and intangible.
a. The "tangible harm" seems to consist in a diminution of the physical strength of
society. There are activities which are quite harmless to society when only a few of
its members indulge in them, but which become harmful when the number of
participants grows large. Devlin cites drunkenness as an example. He also argues
that "unrestricted indulgence in vice" will weaken an individual to the extent that he
ceases to be a useful member of society, and society itself will be weakened if it has
a sufficient number of such weak members. He believes that a vicious minority
"diminishes the physical strength of society. Here then is one sense in which
violation of the shared morality harms society: society loses its physical strength
because immorality breeds physical weakness in its members. Devlin believes that
the cohesiveness of the shared morality does not depend on its quality, but on the
fact that it is commonly accepted by the members of the society
b. Devlin also postulates a second type of harm caused by deviations from the shared
morality of society. This is what he calls the "intangible harm" resulting from the
weakening of the commonly held moral beliefs. Most men, he claims, take their
morality as a whole, and immoral activity, by weakening belief in one part of

society's shared morality, will probably result in the undermining of the whole
morality. When there ceases to be common belief in the value of the moral code,
society is threatened with disintegration. Whatever is involved in the
"disintegration" of society, on this argument it is brought about via the rejection of
the shared morality.
4. Devlin's "elastic" principles show that he has a general respect for tolerance and individual
freedom. But at the same time he rejects Mill's defence of freedom because he thinks that
Mill works with too idealistic a picture of human beings. He claims that Mill envisages people
earnestly and conscientiously doing what they think is right even though others disapprove
of their conduct. But this is seldom true of those who violate the shared morality of society.
Devlin thinks that most of them acknowledge the wrongness of their conduct, but still act as
they do because of lust and the desire for money. He declares: "Freedom to do what you
know to be bad is worthless."
5. In Devlin's view, a society's morality is determined by the view of a "reasonable man . . . the
man in the Clapham omnibus." Morality can be based on "disgust" and therefore society's
"general abhorrence of homosexuality" is a sufficient basis for the legal prohibition of
homosexual activity. Privacy can be balanced against the public interest in the moral order
so that even private consensual conduct can be prohibited. Devlin suggested that the
common morality could be discerned by asking- "What is acceptable to the ordinary man,
the man in the jury box, who might also be called the reasonable man or the right minded
man"
Devlin chose the man in the jury box because;
a) The verdict of a jury (twelve men and women) must be unanimous (at the time he was
writing)
b) The jury will only reach its verdict after the issue has been fully examined and deliberated.
c) The jury box is the place where the ordinary person's conception of morality is enforced.
Devlin's guidelines
a) Privacy should be respected.
b) Law should only intervene when society won't tolerate certain behaviour.
c) Law should be a minimum standard not a maximum standard.

H. L. A. Hart
Devlin's relatively simple argument has met with much opposition. The first response came from H.
L. A. Hart, an American professor, who disputed Devlin's thesis saying that
1. He assumes that immorality jeopardizes society, when in fact there is no evidence of that
proposition. While Hart conceded that some shared morality is essential to the existence of
society he questioned Devlin's leap from there to the proposition that a change in society's
morality is tantamount to destroying it-- that society is equal to its morality-- because that
implies that the morality of a society can't change, or rather that if it does one society is
actually disappearing, and being replaced by another.
2. According to Hart, Devlin's argument amounts to an assertion that law should preserve
existing morality, not that legal enforcement of morality is a good in and of itself.16 By

contrast, Hart asserted that society cannot only survive individual differences in morality but
can profit from them, though he does not specify exactly how it might profit.
3. Finally, he said that even if there is a valid argument for the legal enforcement of morality,
Devlin's argument as to how that morality should be ascertained is flawed: ". . . no one
should think even when popular morality is supported by an 'overwhelming majority' of
marked by widespread ' intolerance, indignation, and disgust' that loyalty to democratic
principles requires him to admit that its imposition on a minority is justified."18 Hart's view
of the connection between society and society's morality is more flexible than Devlin's. A
society's morality can change without the society disappearing and democracy does not
require the enforcement of uniform morality, as Devlin suggested.
4. In place of Devlin's justification for the full enforcement of morality, Hart developed his own
argument for the partial enforcement of morality based on a distinction he drew between
immorality which affronts public decency and that which merely 'distresses' others based on
the knowledge that immoral acts are taking place. In Hart's view society may, for example,
outlaw the public expression of bigamy or prostitution, because such could be considered an
affront to public decency, as a nuisance, while it would not be justifiable to outlaw purely
private manifestations of these types of behavior, or of consensual homosexual behavior in
private, even though some might claim to be distressed by the private behavior as well. At
this point Hart viewed it as a matter of balancing the distress from the knowledge that
something immoral is taking place with individual liberty: "no social order which values
individual liberty could also value the right to be protected from this type of distress."
RONALD M. DWORKIN
Distinguishes between Goal-Based Strategy and Rights-Based Strategy:
a) Goal-Based Strategy: Even if the behavior is bad for the community as a whole, just considered
initself, the consequences of trying to censor or otherwise suppress it would be, in the long run,
evenworse.
b) Rights-Based Strategy: Even if the behaviour makes the community worse off, even in the very
longrun, it is nevertheless wrong to censor or restrict it because this violates the individual moral
orpolitical rights of citizens who resent the censorship.
Favouring the Rights-Based Strategy, people have the right not to suffer disadvantage in the
distribution of social goods and opportunities, including disadvantage in the liberties permitted to
them by the criminal law, just on the ground that their officials or fellow-citizens think that their
opinions about the right way for them to lead their own lives are ignoble or wrong. I shall call this
the right to moral independence, Justification of the Right to Moral Independence. Dworkin assumes
that the background justification with which we are concerned is some form of utilitarianism, which
takes, as the goal of politics, the fulfilment of as many of peoples' goals for their own lives as
possible. This is the most prevalent background in Western Democracies.
Application
COMMON LAW
Shaw v DPP [1962] AC 220
The appellant published a 'ladies directory' which listed contact details of prostitutes, the services
they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the
directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of

prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the
grounds that no such offence of conspiracy to corrupt public morals existed.
The court dismissed the appeal and created a new offence. Per Viscount Simmonds in his
judgement, In the sphere of criminal law, I entertain no doubt that there remains in the courts of
law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare of the state, and that it is their duty to guard it
against attacks which may be the more insidious because they are novel and unprepared for.
Knuller v DPP
The appellants were directors of a company which published a fortnightly magazine. On an inside
page under a column headed "Males" advertisements were inserted inviting readers to meet the
advertisers for the purpose of homosexual practices. The appellants were convicted on counts of
conspiracy to corrupt public morals and conspiracy to outrage public decency.
Held: Although Lord Reid dissented in the Shaw v DPP case, he choose not to change or reconsider
the previous decision and upheld the conviction.
Speluncean Explorers
The application of the enforcement of morality can be seen in the case of the Speluncean Explorers
by legal philosopher Lon L. Fuller presents a legal philosophy puzzle to the reader, offering five
possible solutions in the form of judicial opinions that are attributed to judges sitting on the fictional
"Supreme Court of Newgarth". The case involves five explorers who are caved in following a
landslide, and without food, they are likely to starve to death before they can be rescued. They
decide that someone should be killed and eaten so that the others may survive by throwing a pair of
dice. After the four survivors are rescued, they are charged and found guilty of the murder of the
fifth explorer.
On appeal, the article offers five possible judicial responses. Each differs in its reasoning and on
whether the survivors should be found guilty of breaching the law as they were nit within the
jurisdiction of the law because they were not under civilized circumstances and were supposedly to
be governed by natural law. Two judges affirm the convictions, emphasising the importance of the
separation of powers and literal approach to statutory interpretation.
sense" and the popular will while the other uses arguments drawn from the natural law tradition,
emphasizing the purposive approach. A fifth judge, who is unable to reach a conclusion, recuses
himself. As the Court's decision is a tie, the original convictions are upheld and the men are
sentenced to death.
This case revolved around similar facts as the real case of R v Dudley and Stephens, an actual English
criminal case from 1884 involving cannibalism at sea in order to survive. In this case, although they
were held guilty, they were then pardoned by the Queen. Thus, in both cases, the law discarded the
fact that although their act may have been morally justified, morality and necessity does not play a
part in the law as murder, under the law, was wrong. It is up to the law makers to amend the law,
not the court.
POSITION IN MALAYSIA
Ooi Kean Thong & Siow Ai Wei v. Pendakwaraya

In this case, the two applicants were charged under section 8(1) of the Parks (Federal Territory) ByLaws 1981 for behaving in a disorderly manner, to wit, hugging and kissing and thus alleged by
DBKL to be an offence under the by-laws. Initially the matter was compounded by DBKL and the
applicants were supposed to pay the fines imposed. Subsequently they had a change of mind and
decided not to pay the fines as they were strongly of the view that they had committed no wrong in
law
Malaysian courts seem to agree with the enforcement of public morality as can be seen in this case.
The federal court held that what amounts to behaving in a disorderly manner depends on the
prevailing circumstances, place and/or period of time. Per FCJ Richard Malanjum, the obligation of a
local authority is to ensure the maintenance of the health, safety and well-being of the inhabitants
or for the good order and government of the local authority area. Thus, in our view it is within the
power of a local authority to legislate a by-law in order to cater for such situations. Surely it is for the
health, safety and well-being of the inhabitants of a local authority to disallow users of its public park
behaving in a disorderly manner.
The Federal Court, while referring to the case of Lembaga Tatatertib Perkhidmatan Awam v Utra
Badi a/l K Perumal [2000] 3 MLJ 281, cannot conclude that by disallowing any person from behaving
in disorderly manner as the impugned by-law stipulates, is a deprivation of ones life or livelihood or
reputation. To do so would result in chaos the society which is abhorrence to the concept of a
civilized community.

CONCLUSION
On the enforcement of morality through the law, legal philosophy offers many approaches. John
Stuart Mill proposes a harm to others test. It is not the business of the law to promote virtue and
to punish vice. Enforcement of morality is not the function of the state. A distinction must be made
between sin (which should remain a matter of private conscience) and crime (which consists of
conduct that causes harm to others).
Lord Devlin proposes a public morality test. What constitutes society is the existence of shared
values. The law must make it its business to protect these shared values and standards. But as far as
possible privacy must be respected. Not every breach of public morality needs to be punished. Only
such conduct as arouses widespread disapprobation, a mixture of intolerance, indignation and
disgust, needs to be suppressed by the instrument of law.
H.L.A. Hart rejects the public morality test. He believes that except on the simplest issues of
morality, there is no community of beliefs in modern society and no unanimity on what constitutes
immoral conduct. Instead, value pluralism is widespread. Hart, therefore, recommends a critical
morality test. The laws decision to intervene in matters of private conscience must be based on a
thorough, empirical collection and investigation of all facts and a critical analysis of the
consequences. A similar, functionalist and pragmatic approach is recommended by the sociological
school.
Perhaps the question whether or not laws should be used to uphold morality through direct
prohibition is better dealt with on the basis of a calculus rather than on a simple formula like `harm
to others. Prof. Dias suggests a calculus of seven factors: the danger of the activity to others; the
danger to the actor himself; economy of factors needed for detection and pursuit; equality of

treatment; the nature of the sanction; possible hardship caused by the sanction; and possible sideeffects. A combination of such factors can be used as a workable guide to state intervention.
Whatever test one adopts it is clear that in legal ideology it is not possible to set theoretical limits on
the power of the state to regulate private conduct. But for practical reasons the state must stay
away from the enforcement of some moral and religious rules.
Even where enforcement is desirable, the criminalization of conduct is not always necessary.
Alternative approaches to the enforcement of morality can be explored. Prevention and persuasion
may be just as effective as the blunt instrument of penal sanctions.