Herbert Hart

Law, Liberty and Morality

No douht a critical morality based on the theory that all social morality had the status of divine commands or of eternal truth discovered by reason would not for obvious reasons now seem plausible. It is perhaps least plausible in relation to sexual morals, determined as these so obviously are by variable tastes and conventions. Nonetheless, the attempt to defend the legal enforcement of morality on these lines would be something more than the simple un-argued assertion that it was justified. It is worth observing that great social theorists like Burke and Hegel, who were among those most anxious to defend the value of the positive morality and customs of particular societies against utilitarian and rationalist critics, never regarded the simple assertion that these were things of value as adequate. Instead they deployed theories of human nature and of history in support of their position. Burke's principal argument, expressed in terms of the 'wisdom of the ages' and the 'finger of providence,' is in essence an evolutionary one: the social institutions which have slowly been developed in the course of any society's history represent an accommodation to the needs of that society which is always likely to be more satisfactory to the mass of its members than any ideal scheme of social life which individuals could invent or any legislator could impose. For Hegel the value of the established institutions of any particular society rested on an elaborate metaphysical doctrine, not easily comprehensible and certainly not capable of adequate statement in the single sentence which I devote to it here. In outline, it is the doctrine that the history of human societies is a process by which the Absolute Spirit manifests itself and that each stage in this development is a rational or even a logical step and so a thing of value.

However questionable this background of theory in any particular case may be, it is yet there for rational criticism, acceptance or rejection; it prevents the assertion of the value of social institutions being merely dogmatic. The assertion will stand or fall with the general theories deployed in its support. It should, however, be remembered that an evolutionary defence of tradition and custom such as Burke made against the rationalist revolutionary or critic affords little support for the enforcement by law of social morality. In Burke, perhaps because he was a Whig, however conservative, the value of established institutions resides in the fact that they have developed as the result of the free, though no doubt unconscious, adaptation of men to the conditions of their lives. To use coercion to maintain the moral status quo at any point in a society's history would be artificially to arrest the process which gives social institutions their value.

This distinction between the use of coercion to enforce morality and other methods which we in fact use to preserve it, such as argument, advice, and exhortation, is both very important and much neglected in discussions of the present topic. Stephen, in his arguments against Mill, seems most of the time to forget or to ignore these other methods and the great importance which Mill attached to them. For he frequently argues as if Mill's doctrine of liberty meant that men must never express any convictions concerning the conduct of their fellow citizens if that conduct is not harmful to others. It is true that Mill believed that 'the state or the public' is not warranted 'for the purposes of repression or punishment' in deciding that such conduct is good or bad. But it is not true that he thought that concerning such conduct or 'the experiments in living' which it represents 'no one else has anything to say to it.' Nor did he think that society could 'draw a line here education ends and perfect moral indifference begins.' In making these ill-founded criticisms Stephen not only misunderstood and so misrepresented Mill, but he showed how narrowly he himself conceived of morality and the processes by which it is sustained. For Mill's concern throughout his essay is to restrict the use of coercion, not to promote moral indifference. It is true he includes in the coercion or 'constraint' of which he disapproves not only legal enforcement of morality but also other peremptory forms of social pressure such as moral blame and demands for conformity. But it is a disastrous misunderstanding of morality to think that where we cannot use coercion in its support we must be silent and indifferent. In Chapter 4 of his essay Mill takes great pains to show the other resources which we have and should use:

It would be a great misunderstanding of this doctrine to suppose that it is one of selfish indifference which pretends that human beings have no business with each others conduct in life and thai they should not concern themselves about the well-doing or well-being of one another unless their own interest is involved.