When Mormons get up set about things like abortion, pornography, SSM, constitutional prohibitions on anti-sodomy laws, and the like they frequently talk about how these kinds of developments threaten to undermine society’s “moral fabric.” However, I don’t think that we have been sufficiently reflective about this rhetoric. I think that Lord Devlin can help us understand why.
Sir Patrick Devlin was an English Barrister and later Judge of Queen’s Bench. In 1957, a law reform commission in Britain published a document that came to be called the Wolfenden Report. The Wolfenden Report claimed that all criminal bans on consensual homosexuality should be repealed, arguing in effect that the criminal law should be cut loose from notions of morality and rely rather on some version of the Millian harm principle. Two years later, Lord Devlin published an article attacking the report. English legal philosopher H.L.A. Hart responded, sparking off the so-called Hart-Devlin Debates, which became perhaps the most influential 20th century discussion of the legal enforcement of morality.
Devlin appealed to the idea of society’s “moral fabric.” He argued that the criminal law must respect and reinforce the moral norms of society in order to keep social order from unraveling. According to Devlin, the law should serve the ends of social order, but it could not do so alone. Without a strong set of moral norms to constrain behavior, society would be left with the law alone. Devlin believed that criminal sanctioning of what society regarded as immoral was necessary in order for society to maintain a robust concept of morality. Without such a robust concept, we would be left with law alone as our source of social order.
Notice a couple of the moves that Devlin makes. First, his argument is essentially consequentialist and does not necessarily commit Devlin to a form of moral realism. The “social fabric” argument does not rest on the assumption that there are true moral principles that morality demands that we enforce. Rather, it rests on the notion that morality is socially useful but vulnerable.
It seems to me that there is a rather startling implication from Devlin’s argument, an implication that I suspect that many LDS moralizers would not like. The implication is that we can (within in parameters defined by social usefulness) be more or less indifferent to the content of the morality enforced by the law. What is important is morality as a social fact rather than morality as a moral fact. So long as morality serves the ends of social order, the “moral fabric” argument doesn’t give us grounds for criticizing the particular morality that we are enforcing.
At this point it is worth contrasting the Devlin position with the classical natural law position. Most natural lawyers would argue that there are objectively true moral statements, and that morality requires that the law embody this correct morality. The morality in turn is derived ? in classical natural law theory ? from a certain teleological view of mankind. Human beings have certain ends that define their happiness and excellence and the law ought to be built around the realization of these ends. This view ? unlike the one that I ascribe to Devlin ? is most definitely NOT neutral as to the moral content of the law. Furthermore, it may be largely indifferent to morality as social fact (that is the moral norms that people actually subscribe to), which lies at the heart of Devlin’s position.
The Mormon rhetoric surrounding morality and law ? like most rhetoric ? tends to get confused about precisely what it is arguing for. However, it is worth disentangling the issues and figuring out where one actually stands.