Download Debate: Enforcing Morality with Criminal Law and more Exams Criminal Law in PDF only on Docsity!
Morality and the Criminal Law:
Reflections on Hart-Devlin
J. Paul McCutcheon*
I
The relationship between law and morality represents a major theme in jurisprudence and is the subject-matter of this article. I shall focus on the use of the criminal law to enforce morality and, in particular, I shall consider whether an identi- fiable line can be drawn between moral standards that may properly be the subject of legal enforcement and those that may not. This issue was, of course, central to the Hart-Devlin debate. The immediate catalyst to that debate was the publica-
tion in Britain of the Report of the Wolfenden Committee I
which, among other things, recommended that male homosex- ual conduct be decriminalized. The debate broadly echoed that conducted in the 19th century between the great political philosopher John Stuart Mill and Sir James Fitzjames Stephen, who was arguably the pre-eminent criminal law judge in late- Victorian England. 2 In broad outline Mill, Hart and the Wolfenden Committee advocated the liberal cause while
Stephen and Devlin are generally seen as legal moralists. In
the heady days of the 1960s, and perhaps for many years after- wards, Hart was largely thought to have had the better of the
I.
School of Law, University of Limerick, Ireland. This is a revised version of the Lansdowne Lecture delivered at the University of Victoria, British Columbia, February 5, 2002. Report of the Committee on Homosexual Offences and Prostitution (HMSQ,
- Cmnd 257. See R.A. Samek, ''The Enforcement of Morals: a Basic Re-examination in its Historical Setting" (1971), 49 Can. Bar Rev. 188.
15
16 Criminal^ Law^ Quarterly^ [Vol. 47
debate, to have trumped Devlin's supposedly outmoded,
superstitious (and let it be said religiously inspired) conser-
vatism with a convincing statement of liberal and secular prin-
ciples that best reflected the values of personal autonomy.
However, with the passage of time things do not seem so clear-
cut and I shall suggest that for all its flaws there is something
of merit in Devlin's argument and that it offers insights we
should not ignore.
The question that arises is whether the law should be used
to enforce a particular view of morality, a matter that has been
the focus of debate between liberal and conservative commen-
tators. Mill trenchantly set out the liberal case in his celebrated
essay On Liberty. He wrote that "the sole end for which
mankind are warranted, individually or collectively, in inter-
fering with the liberty of action of any of their number is self-
protection".3 Accordingly, he argued that the right to limit
individual freedom is restricted:^4
the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.
Thus Mill would confine the power of the state to regulate to
cases where harm to others is threatened, the so-called "harm
principle". It is clear that he would deny the state the right to
act paternalistically, on a view of what is in the best interests
of its citizens. Equally, the state is not entitled to enforce a
code of morality (unless the relevant regulation can be inde-
pendently justified on the grounds of harm prevention).
However, Mill qualified these views. The principle of liberty
applies to those who are in "the full maturity of their facul-
ties"S and it followed that the liberty of children could properly
be restricted in their own best interests. By analogy, the same
3. On Liberty (Penguin Classics, 1974), p. 68. _4. Ibid.
- Ibid.,_ at p. 69.
18 Criminal^ Law^ Quarterly^ [Vol. 47
do not provide as apparently clear-cut a criterion as Mill's
harm principle, but instead they operate as broad guidelines to
the proper limits of the criminal law. Stephen's confidence in
the state of the criminal law as it existed in late-Victorian
England might now strike us as being astonishingly compla-
cent and his robust Christianity and arguably elitist views lO^ are
hardly in tune with the secular and democratic spirit of this
age.
II
The Hart-Devlin debate was stimulated by the publication,
in 1957, ofthe Report of the Wolfenden Committee, which rec-
ommended the decriminalization of male homosexual conduct
and the regulation of prostitution-related activities. The back-
ground to the debate was completed by the decision several
years later in Shaw v. Director of Public Prosecutionsll^ in
which the House of Lords held conspiracy to corrupt public
morals was an offence known to the law. To support its case
for the liberalization of the law the Wolfenden Committee
invoked the harm principle and suggested that there is a realm
of private conduct that is "in brief and crude terms not the
law's business". In Shaw the House of Lords took a different
tack and argued that one of the functions of the criminal law
was to protect the public moral welfare: to this end, Viscount
Simonds opined that the courts enjoyed a residual power to
recognize or create new offences where this course of action
was demanded by the interests of public morality.
Devlin took issue with the central proposition in the
Wolfenden Report. 12 He acknowledged that the harm principle
.could explain the core prohibitions of the criminal law (such as
murder, rape, assault, theft) but, in his view, that principle is
- See Uberty, Equality, Fraternity, ibid., at p. 32: "We agree that the minority are wise and the majority foolish, but Mr Mill denies that the wise minority are ever justified in coercing the foolish majority, whereas I affirm that under circum- stances they may be justified in doing so ... in my opinion the wise minority are the rightful masters of the foolish majority".
- [1962] A.C. 220. 12. The Enforcement of Morals (Oxford: Oxford University· Press, 1965).
2002] Morality and the Criminal lAw 19
not the sole criterion. He contended that that principle does not explain the criminalization of consensual conduct which by its nature does not cause harm to others and to this end he
referred, inter alia, to the prohibition of voluntary euthanasia,
suicide pacts, duelling, abortion and sibling incest. Those are acts which can "be done in private and without offence to oth- ers and need not involve the corruption or exploitation of oth- ers ... [t]hey can be brought within [the criminal law] only as a matter of moral principle".\3 To Devlin a sense of public morality is vital to the integrity of society. On this view a shared moral perspective is the cement that holds society together and a dislodging of public morality threatens the structure of society itself: 14
society means a community of ideas; without shared ideas on politics, morals, and ethics no society can exist ... If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought... A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society must pay its price. Devlin went further and stated that "[m]orals and religion are inextricably linked" and that "the moral standards of Western civilization are those belonging to Christianity". 15 However, it should be emphasized that he did not contend that Christian morals should be enforced in their own right through the mechanism of the criminal law; in this respect he was no theocrat. He made a more subtle point: for the purposes of the criminal law there was no discernible difference between "Christian morals and those which every right minded member of society is expected to hold" .16 He was also careful to ensure that this notion of public morality would not become a vehicle
13. Ibid., at p. 7. 14. Ibid. ,at p. 10. 15. Ibid., at p. 4. 16. Ibid., at p. 23. Devlin also expressed the view that the "free-thinker and non- Christian" could accept that Christian morality formed the basis of the criminal law.
2002] Morality and the Criminal Law^^21
rejected the notion that conduct might be prohibited on the ground that mere knowledge of its occurring might cause shock or offence to others: 22 If distress incident to the belief that others are doing wrong is harm, so also is the distress incident to the belief that others are doing what you do not want them to do. To punish people for causing this form of dis- tress would be tantamount to punishing them simply because others object to what they do; and the only liberty that could coexist with this extension of the utilitarian principle is liberty to do those things to which no one seriously objects. Such liberty is plainly nugatory. Recognition of individual liberty as a value involves, as a minimum, acceptance of the principle that the individual may do what he wants, even if others are distressed when they learn what it is he does - unless, of course, there are other good grounds for forbidding it. No social order which accords to individual liberty any value could also accord the right to be protected from distress thus occasioned.
III
The enforcement of sexual morality was its immediate con- text but the general terms in which the Hart-Devlin debate was conducted show that its scope is much broader and it is rele- vant to other forms of private behaviour: drug-taking, private use of pornographic material, gambling and animal cruelty are examples. A number of justifications might be invoked in sup- port of prohibiting these activities, including a paternalistic determination of what is in an individual's best interests, pub- lic decency, public sentiment, feelings of revulsion or disgust as well as public morality. However, it is difficult to bring pro- hibition in these cases within the harm principle, at least as it was classically articulated by Mill: the conduct in question occurs in private and does not "harm" others. Similar consid- erations arise in relation to laws that require the wearing of seat belts and crash helmets. Nevertheless, such is the endur- ing ideological appeal of the harm principle that it is frequently invoked to justify prohibitions. Thus it is said that drug-taking harms society in that drug users are liable to become a charge on the public purse: as a result of their conduct it is likely that
22. Ibid., at p. 47 (emphasis added).
22 Criminal Law Quarterly [Vol. 47
they will rely on publicly funded health and social welfare programmes and that this is a type of indirect harm that is properly a matter of societal concern. However, even if this is the case it does not necessarily follow that the use of the crim- inallaw is appropriate. Other measures that have a less restric- tive impact on individual liberty might be employed such as taxation, the withdrawing of entitlements to public assistance or the placing of the costs of such conduct on the individuals who engage in them. I express no particular opinion on this point but it seems to me that those who derive their views from Mill have a case to answer. By the same token, the harm prin- ciple has been invoked in support of the imposition of stricter prohibitions of pornographic and violent literature, films and videos: a link is said to exist between exposure to such mate- rials and violence against women and children. These efforts to justify the various prohibitions in terms of harm stretch the principle to such an extent that the reworked concept of harm becomes nebulous. 23 Hart implicitly acknowledged this diffi- culty in his qualified adoption of Mill's proposition and his recognition that grounds other than harm, including paternal- ism and public decency, might justify legal prohibition. However, it should be noted that other liberal theorists would eschew paternalism as a permissible rationale. A further diffi- culty that Hart and others tend to overlook is that the concept of harm itself, as MacCormick has observed, is "morally loaded".24 The decision to classify a consequence as "harm" with a view to its prohibition involves a societal judgment that is essentially moral in nature. It runs into claims of individual liberty and the reasons that are accepted as being sufficient to limit that freedom will depend on the decision-maker's evalu- ation of the competing normative propositions that are advanced.
- See Harcourt, 'The Collapse of the Harm Principle' (1999), 90 J. Crim. L. & Criminology 109; Ashworth, Principles of Criminal Law, supra, footnote 8, at pp.44-45.
- N. McCormick, Legal Right and Social Democracy (Oxford: Oxford University Press, 1982), p. 29.
24 Criminal Law Quarterly [Vol. 47
thesis and a corresponding rejection of that associated with Devlin. However, the foregoing catalogue does not paint the full picture and examples abound of liberty limiting laws that seem to rest on considerations of morality. The American and Irish Supreme Courts have held that constitutional rights of privacy do not invalidate laws that penalize male homosexual conduct. In Bowers v. Hardwick^31 the majority of the U.S. court held that it was constitutionally permissible to base laws on what are essentially moral choices. In the Irish case, Norris v. Attorney General,32 the majority reinforced broadly similar reasoning by alluding to the condemnation of homosexual conduct by Christian teaching as being "gravely sinful". My point is not whether those decisions were convincing; in fact I believe that they were flawed and find the reasoning unper- suasive. What is significant for present purposes is that moral considerations, or perhaps more accurately what the courts in those cases thought were moral considerations,33 prevailed over arguments from autonomy. Individual liberty is also compromised by an array of laws that do not seem to be based on considerations of harm (or, for that matter, paternalism) but are better explained as resting on moral rationales. Examples include laws that prohibit consen- sual adult incest, bestiality, animal cruelty and (in various American states) fornication, adultery and necrophilia, as well as consensual killing and injuring. These counter-examples do not amount to a negation of the liberal case but at the least they call for comment. One plausible answer from the liberal per-
- 478 US 186 (1986).
- [1984] IR 36. The European Court of Human Rights later ruled that the measure violated the plaintiffs right under the European Convention of Human Rights: Norris v.lreland (1988). 13 EHRR 186. Homosexuality was eventually decrimi- nalized: Criminal Law (Sexual Offences) Act 1993.
- See Murphy, "Moral Reasons and the Limitation of Liberty" (1999), 40 Wm. and Mary L. Rev. 947 at p. 952, suggesting that the U.S. court failed to consider three vital questions that arise in relation to a claim that moral conviction may justify a criminal law: (i) did a majority of the citizens in fact disapprove of the practice in question; (ii) if so, was that disapproval moral in nature; and (iii) if the disap- proval is moral in nature, is it rational or reasonable.
2002] Morality and the Criminal Law 25
spective is that all or some of these laws involve an indefensi- ble curtailment of individual liberty and cannot stand. In the alternative, a liberal might seek to show that in fact the various proscriptions fall within the harm principle or cause offence or, in case of theorists like Hart, amount to legitimate pater- nalism. In this event the proponent will face a considerable burden of proof in regard to most of the examples cited;34 per- haps it might be most easily discharged in the case of incest. I wish to examine several cases in slightly more detail. It has long been established that an individual may not consent to the infliction of serious personal violence. This general proposi- tion was endorsed in R. v. Brown 33 where the House of Lords held that the consensual infliction of injury by sado-masochis- tic homosexuals was criminal and the accused were convicted on a variety of serious assault charges. In reaching this con- clusion the Law Lords adopted a line of earlier decisions to the effect that legally operative consent is limited to trivial degrees of force, defined as force that is not likely to result in actual bodily harm. The majority approved the statement of law by the English Court of Appeal in Attorney-General's Reference (No 6 of 1980): "it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason". The dividing line between the lawful and unlawful is hap- hazardly drawn. It is accepted that "ritual circumcision, tattoo- ing,ear-piercing and violent sports including boxing are lawful activities".36 On the other hand, case law has established that sexual gratification is not a good reason for raising the threshold of permissible force/ 7 nor is consensual fighting, nor an agreement by a wife that her husband may beat her if
- It is perhaps significant that Goldberg J. in his concurring opinion in Griswold v. Connecticut, 381 US 497 (1965), considered the constitutionality of adultery and fornication laws to be "beyond doubt". 35. R. v. Brown, [1994] 1 AC. 212 (H.L.).
- Ibid., at p. 231 per Lord Templeman. 37. R. v. Donovan, [1934] 2 K.B. 498 (C.C.A); R. v. Brown, supra, footnote 35; People v. Samuels, 250 Cal App 2d 501 (1967). 38. Attorney-General's Reference (No 6 of 1980), [1981] Q.B. 715 (C.A); R. v. Jobidon (1991), 66 C.C.C. (3d) 454, 7 C.R. (4th) 233, [1991] 2 S.C.R. 714.
2002] Morality and the Criminal Law 27
unlawful irrespective of the consent of the complainant. A per- son of full age and capacity is denied the opportunity to do with his or her body as he or she pleases. However, I suspect that few reasonable people would consider these laws to involve an inappropriate intrusion into individual liberty or, to borrow Stephen's words, that these prohibitions represent a "restraint on decent people which is ever felt as such". Furthermore, I think that most "decent people" would consider legislative intervention in these matters to be warranted. In other words, the general public belief is that it is proper for law-makers to criminalize these activities. The reasons for those sentiments hardly need to be stated. Yet from a liberal perspective this is the type of curtailment of liberty that is problematic. The fact that the legislature or the majority of the public might view the acts in question with distaste or revul- sion or consider them to violate the best interests of the "vic- tim" is neither here nor there. If the liberal position is to have any meaning it surely must be to afford legal protection to preferences that deviate from those of the majority. One response that might be offered by liberals is to query the nature of the consent in cases of the type under discussion. On this basis it might be suggested that it is doubtful whether a "true consent" would or could ever be given to acts such as female circumcision or commercial organ donation. It would not be difficult to identify circumstantial constraints, be they cultural or economic, that Gould be said to deprive a supposed consent of a voluntary character. But this comes close to say- ing: "I do not believe you truly consented because your choice is so irresponsible and so irrational that no sensible person could have made it." I believe that Mill's disciples are estopped from adopting that argument unless they are prepared to modify their thesis and to allow at least a limited role for paternalism and/or legal moralism. Another version of the argument is to acknowledge that true consent might be given in such cases but to focus on the danger of consent being viti-
National Organs Transplants Act 1984 (U.S.); Human Organ Transplants Act 1990 (U.K.).
28 Criminal Law Quarterly [Vol. 47
ated by coercion or other factors. On this pragmatic view, if
the risk of the latter is unacceptably high it might be thought
prudent to withdraw legal approval from all cases; the cost of
restricting the liberty of those who truly consent is outweighed
by the benefit of protecting those who might be coerced or
exploited. However, a position of this type accepts that a per-
son's freedom of action may be limited in the interests of oth-
ers who are not affected by anything done by that person and
again it forces liberals to reconsider their position.
The purpose of this brief survey is to show that considera-
tions other than harm might be advanced in support of laws
that curtail individual liberty. The range of "good reason[s]"
that might be relied on is open-ended and different rationales
for criminalizing are invoked in different contexts. Harm is
one, and as I noted at the beginning of this talk, it can be seen
to underpin the major offences in the criminal calendar: mur-
der, rape, assault, theft and the like. But, as I have suggested,
there are many other offences that cannot be brought within
the harm principle and other justifications must be sought.
Different versions of liberal theory acknowledge that paternal-
ism, offence to others and pragmatic concerns might legiti-
mately be invoked but seem to deny a role for moral
considerations. However, in many such cases a sense that the
proscribed conduct is wrongful is as plausible an explanation
as others that are offered and that sense often is the real moti-
vating force behind the enactment of the prohibition. By the
same token, decriminalization is liable to occur when it is no
longer felt that the conduct in question violates a social norm
(or is required as a protective measure). Ultimately it is prob-
ably futile to seek a single unifying criterion that distinguishes
the lawful from the unlawful. The only safe conclusion, which
was alluded to in R. v. Brown and is obvious in Attorney-
General's Reference (No 6 of 1980), is that certain forms of
conduct are socially tolerated and others are not. Thus male
circumcision, contact sports, professional boxing and rough
horseplay are tolerated while female circumcision, commercial
organ donation, consensual fighting, bestiality and animal cru-
elty are not. I suggest that it is fair to conclude that the latter
activities are considered wrongful, while the former are not,
30 Criminal Law Quarterly [Vol. 47
This is especially evident in declining church attendance and
.the decreasing relevance of religious beliefs and practice in
people's lives. However, it would be an exaggeration to con-
clude from this that the Western societies are no longer
Christian. Christianity, or perhaps more accurately the Judaeo-
Christian ethical tradition, has shaped the development of the
Western world for many centuries and the practices of the cur-
rent generation cannot shake off that legacy. It is possible to
overstate this criticism of Devlin. As I explained earlier Devlin
did not argue for the enforcement of Christian morals as such;
his more subtle point was that as far as the criminal law was
concerned there was no difference between the standards of
Christian morality and that which the "right minded member
of society is expected to uphold". This facilitates a secular
. evaluation of morality or at least one that is not expressly reli-
gious. in nature.
Despite these flaws, if in fact one so considers them, Devlin
provides valuable insights and a renewed recognition of the
cogency of Devlin's arguments is discernible among some
commentators. 4S^ In the first place, he highlighted a trouble-
some inconsistency in the liberal argument: he contended that
its rejection of legal moralism is inconsistent with its prefer-
ence for retributive punishment, that is, the idea that the sanc-
tion imposed on an offender ought to reflect his or her degree
of blameworthiness. Thus there is general recognition that the
accused's personal culpability is a relevant criterion in deter-
mining the appropriate sanction. It is accepted that a poor per-
son who steals merits a lesser sentence than the affluent thief;
and one who steals to feed his or her dependants will be treated
less harshly than the habitual offender for whom theft is a cho-
sen way of life. The punishment must fit the crime. This stance
involves moral considerations and does not confine the deter-
mination of the quantum of punishment to the social goals of
deterrence and harm prevention. 46 By the same token character
- See, e.g., G. Dworkin, "Devlin was Right: Law and the Enforcement of Morality" (1999), 40 Wm. and Mary L. Rev. 927; Murphy, "Legal Moralism and Liberalism" (1995), 37 Ariz. L. Rev. 73.
- See Murphy, "Legal Moralism and Liberalism", ibid., at p. 79.
2002] Morality and the Crimina/LAw 31
failings that are displayed by an accused are apt to aggravate sentence. Where relevant, a court will describe the offender's conduct as wicked, heinous, callous or depraved, language that is pregnant with moral overtones. Liberal theorists are happy to accept this position but would deny the state the right to pro- hibit "harmless" conduct on the grounds that it breaches the norms of what they call "conventional" morality. Murphy has tersely (and perhaps a little cruelly) summarized the contra- diction in the liberal position: 41
Liberals such as Mill and Hart do not think that it is legitimate to crim- inalize homosexuality simply because it is perceived as a vice, and yet they see no problem in punishing particularly vicious criminals more severely than those of greater virtue. Is this not simply an inconsis- tency? Are not Mill and Hart and [Ronald] Dworkin simply being unprincipled when they claim that the criminal law should be con- cerned only with harm and not with personal vice and virtue? Is not their so-called principle simply a slogan that they trot out only when it serves their own sexually permissive ideology? Hart sought to answer the charge of inconsistency by argu- ing that the question of what forms of conduct should be made criminal is "distinct and independent"48 from the question of how severely different offences should be punished. Punishment may be graded for utilitarian reasons (such as fear of bringing the law into disrepute) or for reasons of fairness (such as treating like offences alike). However, Hart argued that this does not necessarily lead to the conclusion that it is justifiable to criminalize immoral conduct on that account alone. To this end he contended that: 49 [liberal theorists] can in perfect consistency insist on the one hand that the only justification for having a system of punishment is to prevent harm and only harmful conduct should be punished, and, on the other, agree that when the question of quantum of punishment for such con- duct is raised, we should defer to principles which make relative moral wickedness of different offenders a partial determinant in the severity of punishment.
47. Ibid., at p. 81. 48. Law, Liberty and Morality, supra, footnote 19, at p. 36. 49. Ibid., at p. 37 (emphasis in original).
2002] Morality and the Criminal Law 33
it another way, that morality is a legally relevant criterion when it comes to determining the contents of the criminal law. It is not the only or governing factor and he identified three "elastic principles" that should be taken into account. These are, first, that allowance should be made for the maximum degree of individual freedom that is consistent with the integrity of society; second, that on new moral issues the law should be slow to act; and third, that as far as possible privacy should be protected. He also accepted that the principle of minimalism is an appropriate consideration. S4 The question for Devlin is one of balancing public interest with individual rights and to this end he acknowledged that not all wrongdoing can or should be criminalized: "[n]othing should be punished by the law that does not lie beyond the limits of social toler- ance". ss He associated intolerance with a "real feeling of repro- bation" /6 with a sense of indignation and disgust. These sentiments were important both as an indication that the limits of tolerance had been breached and in shaping moral judg- ment. S7^ Intolerance, in the sense that Devlin employed the term, was to be distinguished from mere prejudice: in his words "before a society can put a practice beyond the limits of tolerance there must be a deliberate judgement that the prac- tice is injurious to society". The law-maker must exercise that judgment in identifying the limits of social tolerance and thus in determining what may properly be criminalized. Devlin also recognized that society's evaluation of what is tolerable is liable to alter and that this must also be taken into account by the legislator.
54. Ibid., at p. 19: "The last and biggest thing to be remembered is that the law is con- cerned with the minimum and not with the maximum." 55. Ibid., at pp. 16-17.
- Ibid., at p. 17. 57. Ibid., at p 17: "Every moral judgement, unless it claims a divine source, is sim- ply a feeling that no right-minded man could behave in any other way without admitting that he was doing wrong. It is the power of common sense and not the power of reason that is behind the judgements of society."
2- 47 c.L.Q.
34 Criminal^ Law^ Quarterly^ [Vol. 47
VI
I suggest that the notion of intolerance, as Devlin explains
it, is important. It serves to segregate serious wrongdoing from
the trivial and confines the criminal sanction to the former. In
this context Devlin's observation that conduct that is tolerated
is not necessarily approved of is germane. S8 Conservatives
often oppose the legalization of a particular activity on the
grounds that the proposal would amount to societal approval:
thus it is sometimes said that to permit gambling, drinking,
homosexual acts or whatever is to approve these activities.
Devlin clearly disagrees and in this he is not too far from the
liberal position. The lawfulness of many of the acts that I men-
tioned earlier - male circumcision, professional boxing and
rough horseplay spring to mind - is perhaps best explained on
the basis that they are, and traditionally have been, tolerated.
By the same token the criminalization of female circumcision,
commercial organ transplants and consensual fighting can also
be understood as lying beyond the limits of social tolerance.
The notion of tolerance may also be linked to that of social
demand: perhaps they are different sides of the same coin. By
social demand I have in mind the circumstances where an
activity is desired to a sufficient extent to allow or invite a
societal judgment that it is to be tolerated. Conduct that is
socially demanded, in this sense, is liable to be tolerated and
considered lawful. Smoking tobacco, drinking alcohol and
gambling are to one extent or another demanded by the public
and for that reason they are lawful. Where an activity is not
socially demanded, or where it is not demanded with sufficient
force, it is easier to consider it intolerable and to criminalize it.
This might explain why certain sexual pursuits are lawful and
others are not. Liberal societies have come to accept homo-
sexual conduct as tolerable and this no doubt is a consequence
of political action and the raising of social consciousness by
58. Ibid., at p. 18. The language of law refonn reflects this point: the repeal of a con- troversial measure is often described as "decriminalization" (which implies noth- ing more than a willingness to tolerate) rather than "legalization" (which might be taken to indicate approval).
