LEGAL MORALISM: A TENUOUS PRINCIPLE OF CRIMINALISATION

INTRODUCTION

Over the many years of evolution of criminal law, several principles or approaches have been formulated by eminent scholars and jurists for the determination of what may be considered as wrongful conduct.^[1] In an ‘imperfect and undulating society’,^[2] any single principle can seldom serve as the immutable standard for ascertaining ‘the content of criminal law’.^[3] However, the collective importance of these approaches in shaping and informing the debate of criminalisation over the years, cannot be ignored. One of these approaches is ‘Legal Moralism’ which recognizes enforcement of morals as the chief function of criminal law.^[4]

In the following paragraphs, the author shall critically analyse the principle of legal moralism and explain as to why criminalisation of conduct cannot be justified on grounds of morality alone.

LEGAL MORALISM & ITS CRITICISMS

The nexus between law and morality has for long, engendered the belief that unless the law ‘accords with the moral values of the society’,^[5] it cannot ‘acquire legitimacy’.^[6] Consistent with such stream of opinion, Lord Patrick Devlin, one of the chief proponents of Legal Moralism as a theory of criminalisation, asserted ‘public morality’^[7] to be ‘one of the vital ingredients of a society’^[8] and that the function of criminal law was in fact, the enforcement of moral values.^[9] Lord Devlin relied on the standard of ‘reasonable man’ for ascertaining the society’s moral judgments.^[10] According to him, anything which could be presumed to be immoral by the ‘reasonable man’, was immoral for the purpose of law (criminal law).^[11] However, for something immoral to be regarded as criminal, mere dislike by majority of the society is not enough as ‘there must be a real feeling of reprobation’.^[12] Furthermore, before the conduct in question is criminalised, a reasonable balance must be struck between the interests of the society and the individual whose conduct is under scrutiny along with a clear indication that allowing such conduct to continue, would breach the society’s level of ‘tolerance’.^[13] Such thesis by Lord Devlin, however, is not free of criticisms. These criticisms should provide ample justification as to why criminalisation on grounds of morality alone is tenuous, at best.

SUBJECTIVE

Reference is drawn to the case of S. Khushboo v. Kanniammal,^[14] wherein the Supreme Court of India had to determine if criminal proceedings instituted on charges, including but not limited to indecent representation of women, against an actress who spoke in favour of pre-marital sexual intercourse in an interview conducted by a news magazine, ought to be quashed or not.^[15] In its judgment, the Supreme Court stated that even though most of the Indian society viewed pre-marital intercourse as an attack against the centrality and sanctity of marriage as a social institution, criminal law cannot be set in motion against those, who albeit in the minority, disagree with the standards set by the majority.^[16] Quashing the criminal proceedings instituted against the actress, the Court observed that conceptions of morality are ‘inherently subjective’^[17] and that criminal law and morality cannot be expected to be coextensive.^[18] These observations bring to light one of the major criticisms against the legal moralist approach, namely, subjectivity. Such criticism is of merit because Lord Devlin ‘relativises what is morally good to the beliefs of a given society’ and the chief reason behind such relativism was to attain a ‘morality generally of the society’.

The standard of ‘deep disgust’ perceived to be felt by the society, according to the ‘reasonable man’,^[19] is largely abstract. A conduct which is considered to be disgusting by one person, may not be so viewed by the next.^[20] It is indeed a difficult task to reach a normative consensus insofar as moral opinion is concerned, especially in a pluralistic society where there is a confluence of different and often opposing outlooks borne out of divisions in religion, ethnicity, culture and class.^[21] As such, the task of obtaining a ‘morality generally of the society’ is nebulous.

Furthermore, the tipping point between the likelihood of the right-minded or ‘reasonable man’ disliking a conduct (for instance, pre-marital intercourse) and the likelihood of him being disgusted by it, is not possible to gauge or identify. In other words, it is quite impossible to determine the point at which a certain conduct is no longer tolerable and mere dislike towards it, is replaced by a feeling of disgust. The impossibility of such determination is exacerbated in light of the fact that the ‘reasonable man’ envisaged by the legal moralist, is one whose ‘judgment is largely a matter of feeling’.^[22] Such judgment, being led by feelings, which in turn, are shaped by emotions (disgust being one of the six primary emotions), is bound to be subjective. It is also important to note that the legal moralist, for purposes of criminalisation, is only concerned with the inquiry as to whether a certain conduct, presumed to be immoral, breaches the barrier of societal tolerance or not. Thus, it is unconcerned with the objective task of ferreting the reasons as to why a certain conduct is considered immoral in the first place.

DISCRIMINATORY

In view of the foregoing paragraphs, it is evident that the task of identifying the ‘reasonable man’ whose views on morality may be regarded as constituting an “authoritative body of moral sentiment to which the law should look”^[23] is quite difficult. Here, it shall be useful to refer to Packer who felt that if immorality were to be the sole criterion for criminalisation, the inquiry must also entail the determination of whether or not, there exists a ‘significant body of dissent from the proposition that the conduct in question is immoral’;^[24] and if such inquiry yields an answer in the affirmative, the criminal law must tread with caution.^[25] Devlin’s moralist approach seems to stop short of this inquiry. For instance, whilst justifying criminalisation of homosexuality, Lord Devlin albeit cognisant of the existence of a stream of opinion against its criminalisation, he chose to rely on the purported feeling of ‘deep disgust’^[26] towards and collective judgment against homosexuality.

What arguably flows from this justification is that even if criminalisation of a conduct (for instance, homosexuality), adversely affects a comparatively smaller proportion of the society and unreasonably curtails their basic right to lead lives with dignity, the ‘reasonable man’ would have no qualms regarding such criminalisation, if it were his judgment that the said conduct is disgusting and breaches the societal bounds of tolerance. Significantly, in 2018, a five judge Bench of the Indian Supreme Court decriminalised homosexual acts between consenting adults in Navtej Singh Johar v. Union of India.^[27] In this judgment, the Supreme Court reinforced the need for empowering all citizens, whether they form a majority or are part of a minority, through removal of deep-seated societal prejudices, stereotypes, and malicious perceptions. The Court criticised the criminalisation of homosexuality as it thwarted among other things, freedoms of self-expression, rights of choosing a partner and sexual autonomy, all of which are recognised to be part of the Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution of India.

Emphasising on the necessity of providing every citizen with equal access to rights guaranteed by the Constitution, the Court undertook a positive inquiry into the ramifications of criminalising homosexuality rather than being swayed by the purported perceptions of disgust on the subject-matter of homosexuality. It appears that a path of complete devotion to the legal moralist approach might lead to discriminatory application of criminal sanctions against conduct which, in the feelings-led judgment of the ‘reasonable man’, may not be acceptable to the society but in the ultimate analysis, is intrinsic to the life and liberty of several people.

In simpler terms, the notion of morality which has ‘varying hues’,^[28] if regarded as the ‘defining concept of spreading values’, such values ‘may run the risk of being dangerously one sided’.^[29] It seems that Devlin’s legal moralism approach is short-sighted and unmindful of the fact that morality, howsoever important it may be to some people, it is only one of the many elements in a composition of values which a just society ought to strive to inculcate. Among those, are values such as:

the acceptance of a plurality and diversity of ideas… the need to foster tolerance of those who hold radically differing views, empathy for those whom… social milieu has cast away to the margins, a sense of compassion and a realisation of the innate humanity which dwells in each human being.^[30]

REGRESSIVE

In a textbook of criminal law,^[31] a reference is made to a study^[32] wherein it was shown that in the year 1987, nearly 74% of the population in the United Kingdom, still felt and believed that homosexual relations were “always” or “mostly” wrong. The legal moralist theory offers no indication as to whether or not, at the time of decriminalisation, homosexuality was still considered immoral and the erstwhile disgust towards it was merely replaced by an attitude of tolerance; or whether homosexuality came to be perceived as being altogether moral. Furthermore, even after four years of decriminalising homosexuality, courts in India often need to remind the society to be sensitive to and inclusive of those who have different sexual orientations.

Despite decriminalisation in many parts of the world, an attempt to commit suicide, is still viewed as an immoral act against the sanctity of life,^[33] rather than being perceived as an act arising out of suffering, pain, and mental illnesses. Moreover, the conduct of adultery, albeit generally regarded as an immoral act, has been removed from criminal statutes in many countries in view of the principles of right to privacy and the need to proscribe overzealous intervention of criminal law in matters where civil remedies shall suffice.^[34]

All this is testament to the fact that the evolution of criminal law cannot be led or directed on the basis of notions of morality, which are often regressive, unpredictable and pervasive. In other words, ‘deep disgust’, perceived to be felt by the society cannot be a suitable guide for criminalisation, howsoever real such disgust may be. Law, for long, has been considered to be a ‘site of discursive struggle’^[35] where perennial conflicts between contending values yield new visions and through these new visions, the society is brought closer to the cherished ideals of freedom, equality, and justice. Law would fail in this solemn duty if it were to drag its feet behind notions of ‘common morality’, laggard in their evolution due to deep-seated prejudice, ignorance, and antiquity.

CONCLUSION

Often, people tend to assume anomalies in law and justice when the former does not see eye to eye with morality. Such assumption is borne out of the failure to recognise the inherent distinctions between the concepts of law and morality. Law is shaped by ‘political, economic and social necessities’^[36] whereas morality is borne out of ‘principles of fairness, truth, faith, social customs… and sometimes, even superstitious and illogical beliefs.’^[37] Whatever commonalities there may exist between law and morality, rule of law, in any modern constitutional democracy, shall always intend to deliver ‘justice in accordance with law’^[38] and not ‘in accordance with morality’.^[39] In view thereof, it is argued that criminalisation, essentially, a process of law-making must not be led by societal attitudes and perceptions of morality.

1. Sally R Kyd, Tracy Elliot and Mark A Walters, Clarkson and Keating: Criminal Law: Text and Materials (10^th edn, Sweet and Maxwell 2020) 1. ↑

2. Ediga Anamma v State of Andhra Pradesh [1974] 4 SCC 443 (Sup Ct of India) [26]. ↑

3. Kyd (n i) 33. ↑

4. Patrick Devlin, The Enforcement of Morals and the Criminal Law (Oxford University Press 1965). ↑

5. Motilal Padampat Sugar Mills Co. Ltd v. State of U.P. [1979] 2 SCC 409 (Sup Ct of India) [24]. ↑

6. Ibid. ↑

7. Devlin (n iv). ↑

8. ibid. ↑

9. ibid. ↑

10. ibid. ↑

11. ibid. ↑

12. ibid. ↑

13. ibid. ↑

14. [2010] 5 SCC 600 (Sup. Ct. of India). ↑

15. ibid. ↑

16. ibid. ↑

17. ibid. ↑

18. ibid. ↑

19. Devlin (n iv) 7-8, 14-17. ↑

20. Kyd (n i) 11. ↑

21. JR Gusfield ‘On Legislating Morals: The Symbolic Process of Designating Deviance’ (1993) 13 Cal L Rev 54, 55-56. ↑

22. Devlin (n iv). ↑

23. Herbert L. Packer, The Limits of Criminal Sanction (Stanford University Press 1969) 262-264. ↑

24. ibid. ↑

25. ibid. ↑

26. Devlin (n iv). ↑

27. [2018] 10 SCC 1 (Sup Ct. of India). ↑

28. Santosh Singh v. Union of India [2016] 8 SCC 253 (Sup. Ct. of India). ↑

29. ibid. ↑

30. Santosh Singh (n xxviii) [22]. ↑

31. Kyd (n i). ↑

32. S Harding, ‘Trends in Permissiveness’ in Jowell, Witherspoon and Brooks (eds), British Societal Attitudes (5^th Report, Aldershot: Gower, 1988). ↑

33. P Rathinam v. Union of India [1994] 3 SCC 394 (Sup Ct. of India) [85]. ↑

34. Joseph Shine v. Union of India [2019] 3 SCC 39 (Sup Ct. of India) [75]-[77], [144]. ↑

35. ibid. ↑

36. RV Raveendran, Anomalies in Law & Justice: Writings related to Law & Justice (Eastern Book Company 2021) 32. ↑

37. ibid. ↑

38. ibid at p. 33. ↑

39. ibid. ↑

This article has been authored by Atreya Chakraborty. Atreya holds a B.A.LL.B (Hons.) degree from the University of Calcutta and is currently pursuing LL.M in Criminal Law and Criminal Justice at the University of Sussex, UK.

Cite as: Atreya Chakraborty, ‘Legal Moralism: A Tenuous Principle of Criminalisation’ (The Contemporary Law Forum, 03 March 2023) <https://tclf.in/2023/03/03/legal-moralism-a-tenuous-principle-of-criminalisation/> date of access.