Social Cohesion and the Legal Enforcement of Morality

American Journal of Jurisprudence 35:1 (1990).

IN SEPTEMBER OF 1957, THE COMMITTEE on Homosexual Offences and Prostitution, chaired by Sir John Wolfenden, issued its Report recommending to the British Parliament that “homosexual behaviour between consenting adults in private should no longer be a criminal offence.” The Wolfenden Report was forthright in stating the philosophical ground of its recommendation: “It is not the duty of the law to concern itself with immorality as such.” The Report therefore proposed to resolve questions of the legitimacy of legally enforcing moral obligations by distinguishing immoralities that implicate public interests from immoralities that are merely private.¬†Against laws prohibiting, for example, consensual adult homosexual activities, the Report urged that “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”

This claim touched off one of the most remarkable debates in the history of English-speaking jurisprudence. The initial salvo was fired by Patrick Devlin, then a High Court judge, who argued in the British Academy’s 1959 Maccabaean Lecture in Jurisprudence, that the Wolfenden Report was mistaken to posit a private sphere of (im)morality into which the law ought not to venture.

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American Journal of Jurisprudence