VARIETY
81
behavior and what is in actual fact countenanced and practiced. Though
adultery in England is thought to be morally wrong, there are no
statutes under which a man may be punished for sleeping with some–
one else's wife. Adultery is not a legal offense, nor does it presumably
arouse in the public "intolerance, indignation, and disgust," the three
emotions which Lord Devlin insists are inevitably evoked by those
acts which offend the accepted morality. Whenever this triad is present,
the law must punish. Yet how is one to measure "intolerance, indigna–
tion, and disgust"? Without an appeal to Dr. Gallup, it would be dif–
ficult to decide what, if anything, the general public really thinks about
these matters. Without a referendum, it is anyone's guess to what
degree promiscuity, say, arouses disgust in the public. Of course Lord
Devlin is not really arguing for this sort of democracy. His sense of
right and wrong is based on what he was brought up
to
believe was
right and wrong, as prescribed by church and custom.
In the realm of sexual morals, all things take on a twilight shade.
Off and on for centuries, homosexuality has aroused the triple demon
in the eyes of many. But a majority?
It
would be surprising if it did,
knowing what we now know about the extent-if not the quality–
of human sexual behavior. In any case, why should homosexual acts
between consenting adults be considered inimical to the public good?
This sort of question raises much heat, and the invoking of "history."
According to Lord Devlin, "the loosening of moral bonds is often
the first stage of (national) disintegration." Is it? The periods in
history which are most admired by legal moralists tend to be those
vigorous warlike times when a nation is pursuing a successful and
predatory course of military expansion, such as the adventures of
Sparta, Alexander, Julius Caesar, Frederick of Prussia. Yet a reading
of history ought to convince Lord Devlin that these militaristic societies
were not only brutish and "immoral" by any standard but startlingly
homosexual. What was morally desirable in a Spartan army officer
is now punished in Leicester Square. Obviously public attitudes have
changed since those vigorous days. Does that then mean that laws
should alter as old prejudices are replaced by new? In response to
public opinion, the Emperor Justinian made homosexuality a criminal
offense on the grounds that buggery, as everyone knew, was the chief
cause of earthquakes.
With the decline of Christianity in the last two centuries, the legal
moralists have more and more used the state to punish sin. One of
Lord Devlin's allies,
J.
G. Stephen, in "Liberty, Equality, Fraternity,"
comes straight to the point. Referring to moral offenders, he writes,
