To suggest legislating morality in Canada today would invite ridicule involving doilies, antimacassars and a bust of Queen Victoria if not the Spanish Inquisition. Yet progressive advocates of diversity are often strong proponents of hate speech laws and other legal sanctions against acts that are not criminal in the sense of involving force or fraud, but are immoral as we now understand the term like, say, refusing to bake a wedding cake for a gay marriage. So, while there is much room to debate what constitutes immorality, it’s silly to pretend we don’t legislate against it.
The very word “morality” can trigger emotional palpitations in a culture where it is considered immoral to be what the kids now call “judgy”. But consider the police officer in London Ontario subjected to ritual public humiliation for an online picture of her in “tribal costume” including blackface at a Halloween party 12 years ago. She was forced to issue a public apology and her chief ordered the whole force into cultural sensitivity and racial awareness training. No crime was committed, but she was judged guilty and sentenced to compulsory moral re-education, and nobody batted an eye.
There can be no mistaking the moralism of the response. Likewise the public crucifixion of former Ontario Tory leader Patrick Brown for conduct no one suggests was criminal. Brown was destroyed for being lustful (although it was also a convenient way to get rid of a leader whom some in his party had decided was a loser), so what of the claim that the law should steer clear of such moralizing?
Devlin for the defence
Let me summon as witness for the defence of legislating morality one Patrick Devlin, Law Lord and Baron Devlin to his friends, whose fascinating 1965 book The Enforcement of Morals, based on his 1959 Maccabean Lecture in Jurisprudence at the British Academy, tackled whether the law ought to take account of popular morality.
The specific subject was decriminalization of homosexuality, which he reluctantly endorsed. Readers are warned that attitudes have changed so radically since 1965 that much of what Devlin wrote might now land him in court, which proves that we still aggressively legislate morality, arguably more aggressively than ever. If he was lucky, some of Devlin’s ideas might merely get him laughed off the modern stage, including his assertion that “the parallel between the ‘professional’ in abortions and the ‘professional’ in fornication is quite close”. But if we scoff at Devlin’s claim that “the most controversial question of all” was “the conditions under which the State should permit a second marriage when the other party to the first is still alive”, let us recall that he was not misreading the public mood of the early 1960s when we were just setting out on the path to “free love”. And it’s possible his fundamental arguments still matter in our superficially very different world.
We might instinctively recoil from his claim that “Not everything is to be tolerated. No society can do without intolerance, indignation, and disgust; they are the forces behind the moral law…” especially given its context of homosexuality. But our dogma of tolerance abruptly ends at any sign of bigotry, which we meet with indignation, disgust and indeed legislation. So much for “you do you”.
Devlin continues that “there is hardly anyone nowadays who would not be disgusted by the thought of deliberate cruelty to animals. No one proposes to relegate that or any other form of sadism to the realm of private morality or to allow it to be practised in public or in private.” This is even more true in today’s hyper-anthropomorphic world. But animal cruelty laws are based solely on morality. It may be argued that we ban murder partly because it is wrong and partly on the pragmatic ground that we do not personally wish to be murdered. But we cannot be subject to animal cruelty; we ban it just because it is wrong.
Dog-fighting bans are by no means the only example of contemporary law grounded in morality going far beyond the narrow libertarian view that force and fraud are wrong. From labour codes to hate speech to public accommodation, the law forbids or compels all sorts of conduct simply because it is judged vile or virtuous under the strictures of progressivism.
Do not be deceived by terms like “micro-aggression” or “safe spaces” that transplant the language of force into the realm of voluntary interaction. We openly legislate morality to promote social cohesion in defiance of freedom of contract and adult autonomy.
Devlin noted that “the law prescribes the shape and obligations of the contract of marriage” without regard for freedom of contract. And, he added, even “if the modern law reformer wanted greater freedom in this respect than the law allows (and I doubt if he does) he would have to remember that freedom of contract is now much less fashionable than it was” under British law generally, including strong statutory rules about rental contracts, for dwellings and for farmland.
The 2018-style “modern reformer” seems more conflicted about marriage than Devlin thought his or her predecessor was on the eve of the 1960s upheaval. Progressives now wish to loosen its bonds while extending its boundaries. One wonders, for instance, how popular gay marriage would be without no-fault divorce. But there is little hesitation today to impose measures like rent control on grounds not of utility but of supposed fairness, and to impose elaborate restrictions on individual freedom and property rights in the name of safety and the environment. And within marriage, for the time being we still ban polygamy, despite our fervent declarations that “love is love”, because it is judged harmful to women even among consenting adults.
Likewise we still struggle, as Devlin did, with the question, “If prostitution is private immorality and not the law’s business, what concern has the law with the ponce or the brothel-keeper or the householder who permits habitual prostitution?” And we still say, as in his day, that exploitation of women is sufficient grounds for the prosecution of pimps or johns. And while our laws against the making of pornography involving violence, children or bestiality protect people and animals, we also ban pornography that only pretends to involve these acts because, plainly, we feel strongly that it is so wrong to enjoy such depictions that it must not be permitted. (Oddly, our Supreme Court ruled in 2016 that bestiality without penetration or injury is OK which might mean such acts can now legally be filmed and distributed in these “enlightened” times.)
So the state never really left the bedrooms of the nation, and it certainly has invaded its boardrooms.
The abortion consensus
Consider next the federal Liberal attempt to deny Canada Summer Job grants to organizations that will not publicly applaud abortion on demand. Of course we are far from requiring everyone to endorse abortion, or even everyone seeking any government subsidy… so far. But in dismissing the issue as a “kerfuffle”, our Prime Minister said “an organization that has the explicit purpose of restricting women’s rights by removing rights to abortion and the right for women to control their own bodies is not in line with where we are as a government, and quite frankly where we are as a society.”
Maybe not. But since we pride ourselves on praising the dissenter, the rebel, the lonely voice challenging authority, why is the Liberal administration attempting to compel conscience, to “open windows into men’s souls” as Elizabeth I famously refused to do in less enlightened times?
This is the same prime minister who claimed “there is no core identity, no mainstream in Canada”, and in the next breath acknowledged “there are shared values — openness, respect, compassion, willingness to work hard, to be there for each other, to search for equality and justice.” It’s anybody’s guess which of those two contradictory statements he actually believes, if either, but he does seem quite certain that our “shared values” are precisely his own. And he seems to share Devlin’s view that the law “does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation; the law must protect also the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty…”
Hating hate speech
Hate speech is an even more striking example of legislated morality. The current Canadian criminal code explicitly protects public safety and security when it forbids public incitement of hatred “against any identifiable group where such incitement is likely to lead to a breach of the peace”. But where it also bans advocacy of genocide or making a statement that “other than in private conversation, willfully promotes hatred”, it is merely censoring free, albeit noxious, speech. Section 13 of the Canadian Human Rights Act did the same thing, unrestricted by due process, until the Harper Conservative government repealed it. Now, inspired by their moral certainty, the Trudeau Liberals are considering reenacting it.
I do not dispute that such speech is gravely immoral. But on what basis do we ban it? Lord Devlin claims “it is no more possible to define a sphere of private morality than it is to define one of private subversive activity….” and compares tolerating widespread drunkenness or promiscuity to tolerating treason. If that seems a little reactionary, consider the arguments used to sanction Wilfred Laurier teaching assistant Lindsay Shepherd, which assumed that permitting free expression of allegedly transphobic ideas would be fatal to social cohesion.
When it comes to bigotry, we don’t just regulate speech. It is illegal to refuse to do business with a person because of their race or sexuality. Of course only a very nasty person would bar someone from their restaurant because of the colour of their skin or their gender identity. But it does no harm beyond hurt feelings if one or two restaurants won’t serve you, because countless others will. Still we vigorously legislate against it – even absent force or fraud – evidently because we are as certain as we are fearful of the tendency of the public to be bigots.
Devlin notes that English law refused to enforce contracts to perform illegal acts and “extends this embargo to acts which although not contrary to law are contrary to morality, such as fornication. The courts will not enforce a covenant to provide for a mistress.” And while “fornication” and “mistress” may seem quaintly moralistic, contemporary Canadian courts have struck down otherwise valid wills because the main beneficiary was judged to be a racist organization.
Who needs morality?
Devlin cites “a celebrated passage” from his contemporary jurist Lord Atkin, who argued that “Acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief…. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.’” Yet the law today does increasingly order us to love our neighbour rather than merely forbid our chucking a brick at him. More evidence that we are moral legislators on steroids.
Many readers will disagree with some of the laws I have mentioned. But mighty few, I am convinced, would abolish all our purely moral prohibitions, including on animal cruelty. Devlin presciently observed that “if the criminal law were to be reformed so as to eliminate from it everything that was not designed to preserve order and decency or to protect its citizens… it would overturn a fundamental principle. It would also end a number of specific crimes. Euthanasia or the killing of another at his own request, suicide, attempted suicide and suicide pacts, duelling, abortion, incest between brother and sister, are all acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others.”
Most of these “crimes” have indeed been legalized, or at least destigmatized, although there may be vestigial sanctions against duelling. But what of hate speech, incest, or fictional “snuff” films? So as long as we prate about non-judgementality we merely prevent ourselves from thinking clearly about why we legislate morality, and how.
Devlin claims starkly “If the whole dead weight of sin were ever to be allowed to fall upon the law, it could not take the strain.” But since the state can legislate morality but cannot generate it, “the free-thinker and the non-Christian can accept, without offence to his convictions, the fact that Christian morals are the basis of the criminal law and that he can recognize, also without taking offence, that without the support of the churches the moral order, which has its origin in and takes its strength from Christian beliefs, would collapse.”
Such an argument would hardly command majority support today. And Devlin, recognizing 19th century British poet Matthew Arnold’s “melancholy, long, withdrawing roar” of the sea of faith, sometimes veers hard into utilitarian territory. If “a State which refuses to enforce Christian beliefs has lost the right to enforce Christian morals”, it should still legislate for “the smooth functioning of society and the preservation of order”. Moreover, “the weakness of the free-thinker’s position is that he offers no substitute for religion as a social force…. Morality and religion are so inextricably intertwined in the mind of the ordinary man that the wise sociologist has to accept that they cannot just be wrenched apart…. The question for the social reformer is not whether Christianity is right or wrong but whether it is dispensable. If he has his feet on the ground, he knows that it is not.” But they have been wrenched apart, and there’s a free for all going on to determine a substitute moral framework for law making.
Christians, like “free-thinkers”, disagree on many fundamentals. But whatever the source of our conception of right and wrong, we can no more say the law is indifferent to morality or should be today than when Lincoln memorably skewered Stephen Douglas for taking that position on slavery in 1858.
Whose and how far?
So we must recognize that we do it, and think sensibly about how we do it and why. As Devlin says, “The corruption of youth is a well-recognized ground for intervention by the State… But if similar protection were to be extended to every other citizen, there would be no limit to the reach of the law.”
Our culture clearly agrees with the first part of his argument if not perhaps his terminology, retaining the offense of statutory rape, regarding child molesters with particular horror, and seeking to keep tobacco, alcohol and other drugs from minors. But there seems little appreciation for his caution that if the state tries to protect all citizens from such corruption, there will be no limit to its reach.
Before endorsing suffocating paternalism and enforcement of often false orthodoxy we would be well advised to ponder one of Devlin’s concluding points: “The last and biggest thing to be remembered is that the law is concerned with the minimum and not with the maximum; there is much in the Sermon on the Mount that would be out of place in the Ten Commandments. We all recognize the gap between the moral law and the law of the land. No man is worth much who regulates his conduct with the sole object of escaping punishment, and every worthy society sets for its members standards which are above those of the law.”
Again his language, especially the Biblical references, might conceal from most Canadians the ongoing relevance of his underlying argument. Especially in a society that believes it has moved beyond good and evil, we cannot criminalize every breach of decency. It would be a morally impoverished society of brittle and resourceless individuals who considered such a thing necessary, and of clueless ones who considered it possible.
So let us, like good Victorians, give less thought to law and more to morality: what it says, why and how. Otherwise we risk swinging the policeman’s truncheon in blind fury, and freedom will soon go the way of faith.
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