The trouble with such reasoning is that it would allow the majority in any society to impose its moral views on the minority, and make it quite acceptable for certain Arab countries to impose imprisonment for the possession of alcohol and death for adultery. There are signs, however, of its being applied in English law too: in Shaw v DPP the House of Lords spoke of the courts’ residual power to conserve the moral welfare of the state.The Obscene Publications Act 1959 requires proof of a tendency to deprave or corrupt those into whose hands the material might fall, it is true, but in R v Gibson  1 All ER 439 the Court of Appeal held that the offence of outraging public decency (by displaying earrings made from freeze-dried human foetuses) requires no such proof, nor indeed proof of anything other than the fact that the defendant intentionally displayed an article that did in fact outrage public decency.
It is worth remembering too that in R v Feely  1 All ER 341 and other cases it has been held that juries in theft cases are to assess “dishonesty” by reference to their own moral standards. H L A Hart, in his book Law, Liberty and Morality (1962) challenged Devlin’s views. He said there is little or no shared morality in a modern pluralist society beyond his “minimum content” for the protection of persons and property, and that there is no freedom if we can do only those acts which others approve of.There is no evidence that a departure from accepted standards of sexual morality by consenting adults in private does anything to threaten society: on the contrary, it is clear that accepted moral standards have changed over the years without society falling apart. Hart doubted whether the wrong of suffering (by punishment) added to the wrong of immorality could ever make a right, and argued that morality could be taught by persuasion but not by coercion. Hart reiterated Mill’s “harm principle”, and said the law should intervene only to prevent some harm.In defining “harm”, however, he went beyond mere physical harm to include shock or offence caused by public spectacle, distinguishing this from distress caused by mere knowledge.
There is no harm justifying legislation, he said, in my distress at knowing you are doing something I think immoral, unless you cause offence by doing it in public. On this basis the law can legitimately prohibit the display of pornographic material in shop windows while allowing its sale to consenting adults behind closed doors.He departed from Mill’s strict line in another way, taking a paternalistic view and allowing that the state may prevent a person’s harming himself. A man’s own physical good is a proper subject of legislation, he said, and legislation against taking heroin or making the use of seat belts compulsory is legitimate. (Stricter followers of Mill might use an argument based on the cost to society of medical treatment for those who harm themselves, but that argument would also justify legislation against mountain climbing and loud music! ) Other jurists then joined the argument, most (but not all) supporting Hart.
Hughes said Devlin’s concept of “the right-minded member of society” as a basis for legislation reminded him of the Nazi law empowering the judges to punish any act considered blameworthy “according to the healthy instincts of the people”. Heuston said Devlin failed to take into account the possibility of plural moralities within one society – or at least, within one jurisdiction, which is what matters as far as legislation is concerned – and that in any case there is no empirical evidence that moral disintegration leads to the political disintegration of a society.And Reynolds took a pragmatic line, drawing attention to some of the practical problems involved in any attempt to enforce morality. Many immoral acts are victimless and a law making such acts criminal is hard to enforce. The cost of enforcement is high, and the police are easily tempted into dubious methods in their efforts to secure evidence to support a prosecution. It is all too easy for the police to become arbitrary (or even corrupt) in their enforcement of such a law, and those prosecuted tend to be those least able to protect themselves.The Attorney-General of Georgia appealed against a ruling that a statute criminalising sodomy between consenting adults was unconstitutional.
The Supreme Court (by 5-4) allowed his appeal and upheld the statute. White J, for the court, said D’s claim was that there was no rational basis for the law other than the belief of an electoral majority that sodomy was immoral: D said that was inadequate justification, but laws were constantly based on notions of morality. Burger CJ, concurring, said the condemation of sodomy was firmly rooted in Judeo-Christian moral and ethical standards.But Blackmun J, dissenting, dismissed the moral convictions of the majority as irrelevant: a State can no more punish private behaviour because of religious intolerance than because of racial animus. The knowledge that other individuals do not adhere to one’s own value system cannot be a legally cognizable interest.
Stevens J agreed, and said the fact that the governing majority had traditionally viewed a particular practice as immoral could not be regarded as a sufficient reason for upholding a law prohibiting that practice. However, Hart’s stance is not above criticism either, and the “harm principle” is particularly vulnerable.Dias argued that any definition of harm necessarily involves a prior moral judgement: for example, Wolfenden’s recommendation that young people be protected from “corruption” by homosexual activity presupposed that homosexual activity was harmful in itself, and that was a moral judgement with which not everyone would agree. In any case, the distinction between public and private acts falls badly on the activities of political pressure groups, perhaps with extreme moral views, if we say that they are to be tolerated only as long as they confine their activities to private places.Samek, a Canadian jurist, was probably speaking for most people when he said that the immorality of an act was a relevant factor in deciding whether or not it should be made illegal, but that it should never be the deciding factor. There is no easy answer: we can agree with Devlin that society is entitled to protect its own existence, but recognise that in some circumstances the attempt to enforce moral legislation may endanger the fabric of society at least as seriously as the behaviour the legislation was intended to prevent.
Or again, we may agree with Hart that the majority should not seek to impose its own moral views on others, but run the risk that if the law fails to enforce those views, an outraged majority may take matters into its own hands with consequent public disorder. Riddall points out that if certain behaviour produces widespread intolerance, indignation and disgust, and the law fails to act, people may take the law into their own hands and lynch law may replace law administered by the courts. R v Brown ; others  2 All ER 75, HLThe enforcement of morality was a major issue in the “Spanner” case, in which six middle-aged men were prosecuted for a variety of offences arising out of their sado-masochistic practices. All those involved were adults and had fully and freely consented to the acts done to them, and none sustained injuries sufficiently serious to need medical treatment. The acts were carried out entirely in private, and none of the “victims” had made any complaint, the activities having come to the attention of the police by accident during another investigation.The House of Lords, upholding Judge Rant and the Court of Appeal, decided by a majority of 3-2 that the men’s conduct was criminal. Lord Templeman said society is entitled to protect itself against a cult of violence: pleasure derived from the infliction of pain is an evil thing, and cruelty is uncivilised. Lord Jauncey said it would not be in the public interest for the deliberate infliction of bodily harm during homosexual sado-masochistic activities to be held to be lawful.
Lord Lowry said sado-masochistic practices are not conducive to the enhancement or enjoyment of family life or the welfare of society, and any relaxation in the law would encourage such practices. But Lord Mustill, dissenting, said the question was not whether the men’s conduct was morally right – most people would say not – but whether it was criminal, and he would not distort the meaning of the relevant statute to make it so. Lord Slynn, also dissenting, said it is not for the courts in the interests of paternalism or to protect people from themselves to introduce into statutory crimes concepts that do not properly fit there.Laskey Brown ; Jaggard v United Kingdom (1997) 24 EHRR 39, ECHR In this application, arising from the case above, the Lords’ decision was upheld by the European Court of Human Rights. The Court acknowledged (as indeed did HM Government) that the law as stated by the House of Lords involved an infringement of the defendants’ right to respect for their private life, but said it was justified as necessary for the protection of health and/or morals.
European Convention on Human Rights Article 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference with a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.The Convention does not specify whether it is public or private morality that is concerned, but this decision from a normally liberal court appears to validate the arguments of those who say the regulation of private morality is a legitimate matter for the criminal law.