The Western democratic state depends on a public space that is free, peaceful, and equally accessible to every citizen. How far can we go in shaping the space to meet the demands of ‘public morality’, before we upset this delicate balance?
There is a picture of Western democracy that is often invoked in the current debates over the place of religion in a secular society. According to this picture, the role of the state is to protect the public space in which political decisions are taken, in which agreements are brokered and in which the social and economic life of the nation is peacefully conducted. This public space must be accessible to every citizen. Differences of race, of wealth and also of religion should all be discounted on entering the public space. Those who attempt to capture that space in the name of a religion are the enemies of civil government. It is a space whose ruling principle is the freedom of conscience, including the freedom of religion – the first freedom defined and offered by the US Constitution. From this first freedom others follow, including freedom of speech and opinion. The law has, as one of its duties, that of protecting this public space, and that means preventing people from invading or curtailing the freedoms that define it.
Something like this picture was adopted at the Enlightenment; so we think at least. In Britain, it led quickly to Catholic Emancipation and then to a public ethos of toleration, extended towards religious minorities. Soon, the advocates of toleration were pressing for toleration to be extended not merely to minority religions, but also to minority lifestyles, and even to alternative moralities, John Stuart Mill famously arguing in On Liberty for a clear distinction between that which can be forbidden and that which, while morally disapproved, must nevertheless be permitted by law.
Mill enunciated the central doctrine of his argument thus: “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.” He added, “His own good either physical or moral is not a sufficient warrant. He cannot rightfully be compelled to do or forebear 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.”
Freedom is vital for the health of a modern society, in Mill’s view, since it is the sole means whereby new truths can be discovered, new forms of life embarked on, new consensuses established – in other words, it is necessary if societies are to adapt. And what does not adapt does not survive. To that utilitarian argument he adds, or at least hints at, another, which is that we have no right to forbid what does no harm to others. The right here is not just a legal right, obviously, since that would simply make the argument circular. Mill seems to think that there is no moral right to forbid what harms no one except the agent. That is because we have a right to freedom, a right which either lies in the nature of things or is fundamental to the kind of citizenship that we enjoy.
Mill’s background assumption was that ordinary morality was not so firmly founded or universally accepted a system, as to provide a sufficient condition for outlawing the behaviour of which it disapproved. There was need for another and more objective test, one that would enshrine and guarantee the fundamental liberal premise, which is that the law exists not to curtail our freedoms but to promote them. By preventing people from harming their neighbours, the law would promote the freedom of everyone.
Mill’s argument has often been criticised, and this is not the place to examine the very many logical subtleties that have been devised both by its supporters and by its critics. Whatever its weaknesses, we must recognise that the argument has been and remains extremely influential, being pressed into the service of mid-19th-century liberal reforms until the present day. It captures one of the ground rules on which the public space of Western societies has been built – the rule that the law steps in only to defend fundamental freedoms and never to curtail them. If it seems to curtail them it is only in order to protect them from abuse. And freedom is abused whenever it is used by one person to remove freedom from another.
This was the argument deployed in the liberalising of the laws regarding sexual offences, and in particular those concerning homosexuality, in the 1960s. Some people, possibly a majority, thought homosexual acts to be immoral, whether or not between adults and whether or not consented to. But that was not a sufficient ground for making those acts illegal. Such was the argument advanced by the Wolfenden Report and embodied in the subsequent Sexual Offenders Act of 1967. It is significant, however, that those who adopted the argument and pressed for the reforms did not, on the whole, belong to the moral majority. Lord Wolfenden included the notorious amoralist and sex-obsessive Alfred Kinsey among his close advisers, and those who campaigned on the report’s behalf tended to be members of the liberal elite for whom homosexuality had long been part of the culture. They did not, themselves, experience the clash between legal and moral norms that they were imposing on others and the reforms that they advocated were not, for them, a challenge that they had to swallow reluctantly, despite its bitter taste.
For ordinary people, however, law reform in these matters is not the neutral thing that Mill and his followers suppose it to be. To discover that the law no longer enforces a moral prohibition that is fundamental to your worldview is to suffer a kind of existential challenge: a sense of being cut off from the public space, so as to enter it unprotected. This feeling is part of the daily diet of Muslims in Western society, and we ought by now to be grown up enough to acknowledge it. I am not saying such a feeling is right or appropriate in our current circumstances. But it is natural, all the same, and the proof of this lies in the fact that self-declared liberals are also subject to it. When the Labour Party took office in 1997, the House of Commons was suddenly filled with people animated by left-liberal causes, many of them concerning the extension of the permissive agenda in matters of sex. During the next decade we saw the age of consent for homosexual intercourse lowered from 18 to 16, legislation to permit the teaching of homosexuality as an “option” in schools and legislation introducing “civil unions” and quasi-marital rights between homosexual partners. All this was supported with arguments of the kind advanced by Mill, to the effect that “you may think it immoral; but if you cannot prove that it harms anyone, you cannot forbid it.”
At the same time, however, when it came to animals, our legislators took quite the opposite view. One of their number introduced a private member’s Bill to ban fur farming, which was subsequently converted into government policy. The arguments given for the Bill, which had the support of a majority in the Commons, carefully avoided all mention of liberty, rights and harm. Those concepts belong, after all, to the opposition, which could reasonably claim that the liberties of fur farmers were being curtailed, with no proof of harm to other people – and, incidentally, no proof of harm to the animals either. The arguments given for the Bill hinged on something called “public morality”. By this was meant “the aspect of morality with which the law rightly concerns itself, with a view to improving the observable conduct of the nation”. To rear animals for their skins, when these were to be used entirely for the production of luxuries, was regarded as so offensive to “public morality” that it was well within the remit of a democratic state to pass a law forbidding it.
It goes without saying that this argument reverses at a stroke the jurisprudential foundations of legal reforms concerning sexual offences. When Hart and Devlin argued over “the enforcement of morals”, it was in the wake of the case of Shaw v. DPP (1961) 2 A.E.R. 446. (1962) A.C. 223, in which the publication of a “ladies’ directory” – an act of extraordinary innocence in comparison with the daily diet of today’s internet – was held to be a criminal offence, because it was an offence to something called “public morals”. Liberal opinion at the time objected strongly to the phrase “public morals”, as though there were an aspect of morality that somehow escaped the confines of the private conscience to roam at large in the public world, looking for actions to punish.
Lord Devlin’s contention was that the law had every right to uphold the moral consensus, in the face of liberal reforms that would otherwise permit acts regarded as deeply offensive by the majority. This argument was dismissed at the time as both oppressive and quaint. Faced with the opportunity to impose their morality on the nation, however, people who regard the defeat of Lord Devlin as fundamental to the advance of liberty and human rights, seem to take exactly the same line – with one notable difference, namely, that the “public morality” that they choose to enforce is not that of a majority, but that of a minority of puritans who, despite their habit of wearing leather shoes and woollen cardigans, cannot bear the sight of a Venus in furs. And the very same idea of public morality has been invoked in the Court of Appeal to defend the Hunting Act from review by the European Court of Justice, the government arguing that, even if there are no positive consequences of the Act in the matter of animal welfare, that doesn’t matter, since its real purpose is to uphold and enforce the requirements of “public morality”, which is offended by the sight of the unspeakable in full pursuit of the uneatable.
I think we would all agree that, if there really is to be a distinction made between moral and legal wrongdoing and between the sphere of private freedom and that of public control, there must be some principle or procedure for determining what the law can and cannot forbid. If we don’t have that procedure, or if we can chop and change, invoking liberty when liberty goes in our favour and “public morality” when it goes the other way, we are only pretending to distinguish law from morality. And recent experience of the UK Parliament, which is peopled by a new breed of
puritans who are every bit as keen to impose their views on the rest of us as their 17th-century forebears, and every bit as keen as those forebears to claim the exemptions required by their own way of life, suggests that there is a real temptation among those who find themselves able to make laws for the rest of us, to be guided not by the love of freedom but by the morally-inspired desire to extinguish it.
This, it seems to me, is the crucial point. You cannot have it both ways. If there is to be a genuine limit to the enforcement of morals, then it must be a limit that anyone could come up against, if he really has moral convictions, over and above the conviction that people should live according to liberal laws. If someone comes up against that limit and then invokes “public morality” (meaning his own private morality writ large) in order to transgress it, this simply means that he doesn’t recognise it as a limit. Law for him is the servant of his own morality and the morality of others is not the master of law but its slave.
The point here concerns the nature of toleration. A tolerant society is not one in which everyone shares an easygoing permissive morality that sees nothing wrong with any kind of sexual conduct and which gets het up only about animals. A tolerant society is one in which people swallow their indignation for the sake of public peace. It is one in which the public space is protected by an overarching principle which does not forbid disapproval, but rather commands us to contain it. There is toleration only where that which is disapproved is also allowed.
This raises the question of what we mean by distinguishing the public and the private spheres. Some actions, we believe, are permissible in private but not in public. Undressing is one of them. And the concept of decency is absolutely
essential to defining the distinction between the permissible and the impermissible. There is nothing indecent about the act of undressing in private – not, at least, in the normal circumstances in which this act occurs. There is nothing indecent about the love-making of husband and wife in private. But when these acts are put on display they take on another character. They lose their innocence; they become an affront, a challenge and an invitation to states of mind that have no place in the public sphere, and no place in the private sphere either – voyeuristic states which most people regard as repugnant, without necessarily overcoming thereby the temptation to indulge in them.
Now it is here that we begin to see the significance of the word “public” in the phrase “public morality”. The public sphere has its own moral norms. There are things which, while innocent enough in private, lose their innocence when put on display. They lose their innocence because they invade the emotions and the peace of mind of those who observe them, upsetting the delicate balance on which the routines of society depend. Obscenity is the paradigm case of this – though one that it is increasingly difficult to see for what it is, namely, as an invasion not only of the public sphere, but also of the privacy of those who inhabit it. The obscene performance is one that puts something private on public display. It breaks through the barrier between public and private, violating the sense of decorum without which people cannot maintain the objectivity and distance from each other on which the public sphere depends.
In our daily lives we make a radical distinction between the rules that govern our intimacies and those that govern our posture towards those with whom we are not intimate. The rules of the public sphere exist to maintain the kind of distance that makes it possible to live without existential involvements, to negotiate our path through the world of strangers with minimum entanglements and always by negotiation and consent. These rules must be anchored in law if they are not to be exploited by the predators and egoists, who will use them to their own advantage. For example, the public display of sexuality and sexual readiness, which seeks to rewrite all distant and objective relations as forms of entanglement and intimacy, must be strictly controlled. If it is not, then people will begin to see the public sphere as merely a messy and promiscuous version of the private, one in which they are at risk from the predators, and constantly invited to perceptions and emotions that are incompatible with a life among strangers.
If we look at matters in that way, we can, I think, see another approach to the question of law and morality than that advanced by Mill. It is not that the law should withdraw from the moral sphere, making no judgment as to right and wrong, and concerning itself purely with the maintenance of rights – including the right to be wrong. Nor is it merely there to protect the individual from harms wrought by others, leaving him free otherwise to wreak whatever he chooses on himself. The law is there to maintain a public sphere, in which freely chosen relations between strangers are the norm. The law may permit activities between consenting adults that it forbids in public: but the goal may be less to permit private freedoms than to prevent their public display.
On that view, there really is such a thing as “public morality”, which it is the business of the law to enforce. Of course, it is not the morality of the animal rights activists, nor is it offended by the wearing of fur (unless in the manner described by von Sacher-Masoch in Venus in Furs). It is the morality of public decorum, which seeks to confine those activities which have no part in the free society of strangers, to the sphere where they belong.
Decorum is not just an optional addition to the public sphere: it is the sine qua non of its existence.