Should the law punish private sin? Wolfenden, Hart and Devlin

What did the Wolfenden Report recommend?

The Wolfenden Report recommended that homosexual behaviour between consenting adults in private should no longer be a crime, and that street prostitution should be controlled in public places. It was the report of the Departmental Committee on Homosexual Offences and Prostitution, chaired by Sir John Wolfenden, appointed by the Home Secretary on 24 August 1954 and published on 4 September 1957 ^[5][6][8]. Parliament's own web page gives 5 September, but the National Archives catalogue and most other sources give 4 September. The committee had fifteen members, four women and eleven men, and met on 62 days, 32 of them to interview witnesses ^[6].

On homosexuality, the committee proposed to end criminal liability for private acts between consenting adults, with the age of consent set at 21, and rejected the idea that homosexuality was a disease ^[5][6]. On prostitution, it linked the rise of street prostitution to community instability, and the Street Offences Act 1959 followed ^[6][7]. The 1959 Act raised penalties for street solicitation while allowing private arrangements ^[7].

The Report is remembered for its statement of principle. It said that it was not the function of the law to intervene in the private lives of citizens ^[6]. As Devlin later quoted it, the Report argued that unless society deliberately set out to equate crime with sin, there must remain a realm of private morality and immorality that is, in brief and crude terms, not the law's business ^[3].

The recommendations on homosexuality took ten years to enact. The Sexual Offences Act 1967 applied only to England and Wales. It exempted certain private acts between adult men, excluded the armed forces and the merchant navy, and did not legalise homosexuality in general ^[6][7]. Public opinion was divided: one summary notes that support for law reform rose from 25 per cent in a 1957 poll to 63 per cent in 1965 ^[7].

Devlin and Hart compared

Question	Lord Devlin	H. L. A. Hart
Core claim	A society may use the law to defend the moral ideas that hold it together; immorality gives a prima facie right to legislate [1][3]	Immorality alone is not enough to justify punishment; the law may intervene to prevent harm to others, following Mill [1]
Key text	'The Enforcement of Morals', read on 18 March 1959 and published in book form in 1965 [1][3]	Law, Liberty and Morality (1963) [1]
View of fornication and adultery	Fornication is a weakness to be contained and adultery is wrong, but the law has long left both largely untouched, and criminalising adultery would be inappropriate [1][3]	Defends a realm of private morality; a reviewer notes that Western attempts to criminalise adultery have been few and largely unsuccessful [4]
Test of morality	The feelings of the 'right-minded' person, or any twelve people drawn at random [1][3]	Rejects the idea that society is identical with its current morality; asks for evidence that enforcement is needed [1]
Legacy	Shaped the case for legal moralism, still discussed in philosophy of law [1]	Associated with the harm principle, later refined by Raz and others [1]

What did Lord Devlin argue?

Lord Devlin argued that a society has a right to use the criminal law to protect the moral ideas that hold it together. He set this out in a lecture, 'The Enforcement of Morals', read on 18 March 1959 and published in the Proceedings of the British Academy; it became the title essay of his book of 1965 ^[1][3]. The Stanford Encyclopedia of Philosophy summarises his view as legal moralism: immorality gives society a prima facie right to legislate, a reason that other considerations can defeat ^[1].

His central claim is the 'disintegration thesis'. A society's shared morality is as necessary to it as a recognised government, so a society may defend that morality against attack ^[1]. In the lecture he argued that societies disintegrate from within more often than they are broken up by outside pressure, and that loosening moral bonds is often the first step ^[3].

He rejected the Wolfenden division between crime and sin as a single principle. He said the Report's error lay in searching for one principle to explain where crime ends and sin begins, and he thought it wrong to speak of 'private morality' at all ^[3]. He preferred the term private behaviour, and said that no one can sensibly separate a public from a private morality, any more than a public from a private highway ^[3].

For the content of the shared morality, Devlin turned to the jury. The lawmaker should look to the moral judgement of society, which is what any twelve people drawn at random might be expected to agree on after discussion, and the law should treat as immoral what a 'right-minded' person is presumed to consider immoral ^[1][3]. He added that the law would not work in the long run if it rested on morals the jury would not accept ^[3].

Devlin did not claim that every immorality should be a crime. The Stanford summary says that he considered adultery wrong but thought it inappropriate to criminalise ^[1]. His point was about the principle: that the law's limits are a matter of what society can bear to tolerate, and not a fixed boundary between public and private.

How did H. L. A. Hart respond?

Hart responded that the mere fact of immorality is not enough to justify punishment, and that the law may interfere with liberty only to prevent harm to others. Herbert Hart, professor of jurisprudence at Oxford, set out his reply in Law, Liberty and Morality (1963), asking whether immorality alone is 'sufficient to justify making that conduct punishable by law' ^[1]. He drew on the harm principle of John Stuart Mill, which holds that power may rightfully be used against a member of a civilised community only to prevent harm to others ^[1].

He attacked the disintegration thesis. Hart accepted that some shared morality is essential to a society, but denied that a society is identical with its morality at any given moment ^[1]. He accepted a minimal core of rules, such as those restraining violence and protecting property, and observed that Devlin offered no empirical evidence that deviation from conventional morality destroys a society ^[1].

The Spectator's review of Hart's book was written by J. F. Wolfenden himself. He wrote that Hart held the issue to be a moral question, not an empirical one: that some societies legislate morality does not settle whether they should ^[4]. He also challenged the premise that a society may act to preserve itself, noting that governments often act to preserve themselves without moral justification ^[4]. Wolfenden ended on Hart's side, praising the book as 'well worth its twopence a page' ^[4].

Hart's critics replied that harm is itself a moral notion. Yves Caron, writing in the McGill Law Journal in 1969, argued that 'harm' depends on a society's value system, so that Hart's test rests on a shared morality of the sort Devlin relies on ^[2]. The point is still discussed in the philosophy of law.

Why were fornication and adultery useful examples?

Fornication and adultery were useful examples because they are plainly regarded as immoral yet are left to the criminal law's silence, which tests how far the law follows morality. Devlin's lecture opened by observing that, as the Report itself said, adultery, fornication and prostitution are not criminal offences ^[3].

His treatment of fornication was candid. He called it, in the view of most societies, 'a natural weakness which must be kept within bounds', and thought that the law could do no more than act against its worst forms ^[3]. He faced the apparent inconsistency directly: the fact that adultery, fornication and lesbianism were untouched by the criminal law, he said, did not prove that homosexuality ought to be left alone as well ^[3].

He also pointed to the paid 'professional', such as the ponce or the brothel-keeper, as the figure whom the law could reach most readily ^[3]. The law of the 1950s thus punished the organiser and left the private act alone, much as it had long left fornication to the churches. The earlier article on the 'bawdy courts' shows how the church courts once judged the same conduct.

Later writers have used the pair of examples in different ways. Caron observed that to enforce rules even on 'mere fornication or adultery' is to enforce morality, and noted that these were both sins and crimes in medieval Christian society but are not always treated as sins today ^[2]. The Stanford article says that the philosopher Murphy reached the same conclusion as Devlin on adultery ^[1]. Wolfenden's review of Hart notes that Western attempts to make adultery a crime have been few and largely unsuccessful, and that adultery might be thought more damaging to the family than other irregularities ^[4].

How has the debate shaped British law since?

The debate shaped British law mainly by supporting the reforms that followed Wolfenden, though it never settled the underlying question. The Street Offences Act 1959 and the Sexual Offences Act 1967 put part of Wolfenden's programme into law, and the latter applied only to England and Wales ^[6][7]. Scotland and Northern Ireland followed later and separately: section 80 of the Criminal Justice (Scotland) Act 1980 and the Homosexual Offences (Northern Ireland) Order 1982 (SI 1982/1536) dealt with private acts there ^[9][10]. Both texts have since been amended or repealed, and the Northern Irish change followed the European Court of Human Rights judgment in Dudgeon v United Kingdom (1981). Public indecency offences stayed in force, and prosecutions for public indecency roughly tripled between 1967 and 1976, according to one summary ^[7].

Fornication stayed outside the criminal law, as it had been for centuries. The current position is set out in the article on whether fornication is illegal in the UK. Family law took over many questions that earlier societies treated as moral offences, and the civil law now deals with cohabitation, divorce and parenthood.

The philosophical dispute continues. The Stanford Encyclopedia notes that modern authors still debate legal moralism, and that writers on prostitution argue that criminalising it gives the trade to criminals without ending it ^[1]. Mill's harm principle, as modified by Hart and Raz, and Feinberg's offence principle, remain standard reference points ^[1].

Was the debate a real disagreement? Caron argued in 1969 that Hart and Devlin did not even speak the same language and that their positions were closer than they appear ^[2]. He also sided with Devlin's criticism that the Wolfenden Committee failed to explain the line between crime and sin ^[2]. Devlin and Hart agreed that a society's survival involves some shared rules; they disagreed about whether it also involves enforcing private morals ^[1].

Frequently asked questions

Who won the Hart-Devlin debate?

Neither side won outright. The reforms that followed Wolfenden moved British criminal law towards Hart's position on private conduct, but philosophers still debate the points on which Devlin insisted ^[1][7]. Caron argued in 1969 that the two were closer than the label 'controversy' suggests ^[2].

What is legal moralism?

Legal moralism is the view that the law may punish conduct because it is immoral, even when it harms no one else. The Stanford Encyclopedia of Philosophy presents Devlin as its best-known defender in Britain, holding that immorality gives society a prima facie right to legislate ^[1]. Hart opposed it with the harm principle ^[1].

Did the Wolfenden Report deal with prostitution?

Yes. The committee was set up to examine both homosexual offences and prostitution, and its recommendations on prostitution led to the Street Offences Act 1959 ^[5][7]. That Act raised penalties for street solicitation but did not outlaw private prostitution ^[7].

Is the debate still relevant today?

Yes, in the sense that the questions it raised recur. The Stanford article shows legal moralism and the harm principle still discussed, including in arguments about prostitution ^[1]. In Britain the practical effect is seen in the absence of criminal penalties for consenting private sex between adults.

What is the harm principle?

It is John Stuart Mill's claim that the only purpose for which power can rightfully be used over a member of a civilised community, against his will, is to prevent harm to others ^[1]. Hart defended a version of it, and Raz and Hart later modified it, while Feinberg added an offence principle ^[1].

What was Devlin's jury test?

Devlin said that the law should look to the moral judgement of society, which any twelve men or women drawn at random might be expected to reach unanimously after discussion ^[1][3]. He called this the standard of the 'right-minded' person or the man in the jury box ^[3]. Wolfenden's review of Hart criticised Devlin's tests of intolerance, indignation and disgust as dangerously subjective ^[4].