Devlin and Dworkin: Criterion for Public Morality

Since it's inception in Patrick Devlin's "The Enforcement of Morals", the concept of "public morality" concerning the laws of the government has been a heavily debated issue. Many famous thinkers throughout the years have spoken out on both sides about it, including H.L.A Hart, John Stuart Mill, and Ronald Dworkin. As Devlin explains it, a society cannot exist if it does not hold shared ideas concerning morality, and that these ideas are impossible to go against without adversely affecting the society. By Devlin's specific criterion, the society's limits of tolerance are passed when an act instills feelings of "intolerance, indignation, and disgust" in the reasonable man.

Both Hart and Dworkin have been very critical of Devlin's opinions on public morality, with both raising significant points about the validity of his reasoning. Both men have taken issue with the fact that in his book, Devlin likens a society's perceived "immortal" acts such as homosexuality to subversion and treason. Hart in particular has a problem with this analogy, claiming that it is "grotesque and absurd" to make any connection between the consenting acts of adults in private, whatever they might be, and the desire for the violent overthrow of the current government.

Dworkin finds fault in Devlin's argument and claims that he has excluded the ground rules of moral reasoning, which he feels greatly decreases the validity of Devlin's criterion. Dworkin feels that a person must be able to produce justifiable reasons to support their moral positions in order to be counted in issues of morality. He states, however, that not just any reasons will do. He says that positions solely based on personal prejudice are invalid, because they deal with something a person cannot control. He also discounts pure personal emotional reactions, concluding that if a person can come up with no better reason than emotions, they must possess an unaccountable phobia of the issue and have no basis for a proper moral position. The last two reasons denied by Dworkin are rationalization, or the use of false facts in establishing your position on an issue, and "parroting", or stating another's position without any reasons of your own.

Of these reasons, Dworkin finds the most fault in Devlin's assumption that the judgments of the reasonable man can be "largely a matter of feeling", which contradicts Dworkin's opinion that pure emotional reactions must be discounted when establishing a moral position. Using homosexuality as an example, Dworkin explains the many ways in which his other unacceptable reasons can be seen in our society towards homosexuality, and concludes that any person whose position on an issue is based on his unacceptable reasons cannot be counted in the public's perception of that issue.

Rather than simply commenting on Devlin's notion of public morality, John Stuart Mill's book, "On Liberty", establishes his own beliefs on the matter. Mill's main focus in his argument deals with the "harm principle", in which he claims that the only legitimate reason for government to restrict individual freedoms is in order to prevent harm to other people. In his opinion, "victimless crimes" that do not harm others cannot be restricted by the government, even if it harms the person who chooses to participate in those activities. He denies the reason of the government acting in a person's own best interests or for their increased happiness, stating that each person is the best judge of their own good and that different people derive happiness from many different things. Mill bases this belief on the fact that a person alone must be in control of himself and his body as a necessary condition of a free society.

Mill also speaks about the "preventative function of government" and it's liability towards being abused at the cost of individual liberties. He states that the government's ability to invade a person's privacy in hopes of preventing a crime is far more likely to be used solely for invading their privacy to find crimes than for any real crime prevention purposes. He bases this on his opinion that the government can conceivably demonize any legitimate activity by claiming that it increases the chances of an unwanted, illegitimate activity.

A very relevant example of this is the PATRIOT Act, which gives the government the right to designate people as vaguely-defined "domestic terrorists" and detain them for as long as they wish with no charges filed, which is legally against the U.S. Constitution. Section 803a of the PATRIOT Act reads as follows:

"The term 'domestic terrorism' means activities that appear to be intended to influence the policy of a government by intimidation or coercion..."

Quite ambiguous, but I suppose that's the point. Make a broad net to allow for the capture of the dangerous terrorists and at the same time leave room to apply the law to protesters and activists later, and slide a bit down that slippery slope towards the complete erosion of our nation's core freedoms and civil rights. And if the public is a little disconcerted about this violation, you gently remind them that terrorism still lurks and that they must remain vigilant. And then a few months later, you push for a little more power to eliminate the scourge of terrorism once and for all, and by then, it's too late.

Another example of such action by the government was during the Red Scare in the 1950s and the constant threat of the communist menace, when hundreds of innocent people's lives were ruined when they were ordered to stand in front of Joe McCarthy and be painted as communists and traitors to their country, and even people with no ties to the Communist Party at all were painted as "communist sympathizers", another vague term designed to maximize the power of the government to interfere with people's lives and limit their personal freedoms. In this case, any activity at all in the Communist Party during a person's lifetime meant they were obviously spies from the Soviet Union, vital parts of a vast conspiracy against the United States from within.

After reading the arguments by Hart and Dworkin, I have come to agree with their assessments of Devlin's criterion on public morality. I also think, like Hart, that equating any private consensual action such as homosexuality to a serious public threat with general public hatred like treason is unfair and downright slanderous. The fact that Devlin uses this analogy only increases the likelihood of even more hatred of homosexuality by people's "parroting" after reading his argument and simply accepting his baseless comparisons to treason and accepting them as perfectly valid. I find Dworkin's other unacceptable reasons to be strong as well, because they eliminate the possibility of a completely biased or brainwashed populace deciding the laws for a minority of people whose activities cause harm to no one.

To me, Mill's harm principle is also a more acceptable criterion for public morality because it always errs on the side of individual freedom instead of government power. This is an important point because it is ultimately up to the populace to decide the laws that govern a country and by instituting this principle, any personal freedom that does not bring harm to others is allowed, which limits the ability of the government to influence the public's opinion about an issue one way or another and pass laws against "victimless crimes" that bring harm to no one.

Public morality is a hotly debated issue, especially now with issues like abortion, homosexuality, and civil rights in the political spotlight. Beginning with Devlin's criterion, some writers like Hart and Dworkin choose to deal with the issue through criticism and clarification of the original ideas while other writers like Mill have sought to espouse their own beliefs on the subject. The concept of public morality itself is central to our society as it aids us in defining the boundaries of government power on many controversial issues, but to be able to do that, we must possess an accurate set of criteria to evaluate it correctly, and the only way to obtain that is through continuing discussion and debate.