VARIETY
BUT IS IT LEGAL?
In 1963, H.
L.
A.
H art, Oxford Professor of Jurisprudence,
gave three lectures at Stanford University. In these lectures (now
published as
Law, Lib.erty and M oralit
y1)
Professor Hart attempted
to answer the old question: is the fact that certain conduct is by
common standards immoral sufficient cause to punish that conduct by
law? A question which leads him to what might be a paradox: "Is it
morally permissible to enforce morality as such? Ought immorality
as such to be a crime?" Philosophically, Professor Hart inclines to
John Stuart Mill's celebrated negative. In the essay "On Liberty,"
Mill
wrote, "The only purpose for which power can rightfully be
exercised over any member of a civilized community against his will
is to prevent harm to others"; and to forestall the arguments of the
paternally minded, Mill added that a man's "own good, either physical
or moral, is not a sufficient warrant. He cannot rightfully be compelled
to do or forbear 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." Now it would seem that at this late date
in the Anglo-American society, the question of morality and its rela–
tion to the law has been pretty much decided. In general practice,
if
not in particular statute, our society tends to keep a proper distance
between the two. Yet national crisis may, on occasion, bring out the
worst in our citizenry. In 1917 while our boys were over there, a
working majority of the Congress decided that drink was not only
sinful for the moral man but bad for the physical man. The result was
Prohibition. After a dozen years of living with the Great Experiment,
the electorate finally realized that moral legislation on such a scale is
impossible to enforce. A lesson was learned and one would have thought
1 Stanford Unjversity Press. $3.00.
