1. Why letting people be bad is good
Michael Lacewing
© Michael Lacewing

2. Lord Devlin’s argument
‘An established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures.’

3. Lord Devlin’s argument
‘There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.’

4. Lord Devlin’s argument
‘The suppression of vice is as much the law’s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity.’

5. Lord Devlin’s argument
‘It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. There…can be no theoretical limits to legislation against immorality.’

6. Lord Devlin’s argument
‘You may argue that if a man’s sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it?’

7. Lord Devlin’s argument
‘But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.’

8. Lord Devlin’s argument outlined
Morality is essential to the welfare of society.
Morality is social, not private.
It is the business of government to look after the welfare of society.
So it is legitimate for government to pass laws on the basis of preserving moral values.

9. Mill’s ‘harm principle’
‘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. His own good, either physical or moral, is not a sufficient warrant.’
Mill argues this approach is good for individuals and society.

10. Individual welfare
‘The only freedom which deserves the name is that of pursuing our own good in our own way.’
Freedom and individuality are connected.
‘The free development of individuality is one of the leading essentials of well-being.’
Individuality and welfare are connected.
Therefore, freedom is necessary to the welfare of individuals.

11. Social welfare
Pursuing your own good in your own way is an ‘experiment of living’. To limit these experiments on any grounds other than their causing harm to others is mistaken and will harm society as a whole:

12. Social welfare
To impose a way of life on moral grounds is to assume infallibility about moral values.
Bad ways of living might still have some insight or truth to them that we would lose if we banned them. Diversity of lifestyles causes people to think about how to live, which leads to better lives.
Different people need to live different sorts of lives.

13. The positions
Devlin: enforcing an agreed moral code is necessary to prevent the disintegration of society.
Mill: experiments of living will lead to better ways of living, and so to social welfare.

14. The debate: points to Mill
Is freedom (all that is) necessary for individual welfare?
People do not learn from their mistakes so experiments of living will not produce better lives.
Mill’s response: freedom is part of the ‘permanent, progressive interests’ we have as human beings.

15. The debate: points to Devlin
Devlin is not concerned with true morality, but agreed morality. How is social progress possible on this model?
Do disagreements in moral values really lead to social disintegration?

16. The debate: ‘private morality’
Is there an area of ‘private morality’?
Mill needs to distinguish ‘harm’ from ‘offence’
‘Harm’ = harm to our permanent, progressive interests
Are any acts so offensive, though not harmful, as to deserve banning by law?