Robert C.L. Moffat, “Not the Law’s Business:” The Politics of Tolerance and the Enforcement of Morality

57 Fla. L. Rev. 1097 (2005) | | | |

TEXT :: In order to appreciate the arguments offered by Professor Eskridge in his Dunwody Lecture, I think a review of the relevant entries in the ongoing discussion regarding the enforcement of morality would help us understand the context in which that debate takes place. That review also offers us a broader basis for thinking about these issues than the narrower focus, important as it is, on the continuing evolution of United States constitutional law. An exploration of the ideas on this subject of the foremost legal thinkers of the latter half of the twentieth century also provides a considerably broader context for our understanding than even the cultural history that Professor Eskridge clearly enjoys detailing.

More specifically, I believe that we must start with the Report of the Wolfenden Committee, because that is where the contemporary debate on the enforcement of morality begins. But that Report based its recommendations on the harm principle of John Stuart Mill, so that is actually the real beginning point. On the other hand, the Report did refocus academic attention on Mill once again and launched a broad colloquy on the question of harm. For Mill, that turns out to be the right to be left alone. John Kaplan argues that secondary harms have to be considered, but they would interfere with privacy only on the fringes. Lord Patrick Devlin’s fear of societal disintegration makes him willing to breach that ideal, but only when he believes that society is threatened with disintegration. H.L.A. Hart criticizes Devlin and claims to defend Mill. But Hart’s embrace of paternalism poses a threat to autonomy. Lon Fuller also criticizes Mill, but he produces a positive conception of freedom that advances the debate considerably.


I find the work of Emile Durkheim provocative, as well as that of some lesser known sociologists. Durkheim’s fear of anomie justifies for him some inroads on privacy, but only because of the important public interest in maintaining social solidarity. In my own previous musings on this topic, I worry about the distinct challenges of a polycultural society, because of the threat to freedom posed by moral crusades that manufacture deviance and generate negative reciprocity. Instead, I advocate a pursuit of positive toleration as an indispensable ingredient in the healthy development of our society. But to start with the Wolfenden Committee, we must turn our attention back fifty years.

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