Legal theorists have long debated whether law should enforce social morality. This paper explores a different problem: should law (try to) improve social morality? I argue that it should. First, against conceptual and empirical doubts, I argue that it is possible for law to improve morality. Second, against certain moral objections, I argue that it is often proper for law to try to improve it. Third, I offer an example: law should try to improve our social morality of sex, by trying to re-shape what we regard as valid consent to sexual activity. Along the way, the ideas of H. L. A. Hart and Patrick Devlin are examined, as are the empirical and policy claims of Paul Robinson and his collaborators.Green comments that
Lawyers and philosophers have long debated whether law should enforce social morality. No, says J. S. Mill, unless doing so prevents harm to others. Yes, says James Fitzjames Stephen, so that intentionally inflicted suffering can affirm and validate the community’s moral judgments. H. L. A. Hart replies: never, unless doing so attains some good that outweighs the loss of liberty and happiness that come with enforcement. Patrick Devlin rejoins: on the contrary, provided what is at issue is a moral standard whose breach an average person would regard with intolerance, indignation, and disgust, we should enforce it. Ronald Dworkin dissents: but that would be to give force to mere hostilities and prejudices, and those do not even count as moral views. Joseph Raz mediates: it is permissible to uphold social morality when the morality enforced helps constitute a valuable form of life and the ‘enforcement’ makes no or minimal use of coercion.
The debate about the enforcement of morality represented in these well-known arguments is far from settled. Disputes continue at the theoretical level, for none of the above doctrines is entirely satisfying and, as with all philosophical arguments, when debate progresses it transforms the questions and our sense of the conditions an adequate answer must meet. And the enforcement of morals is not just a problem that persists for theory; it continues to be controversial in practice. In Anglo-American political cultures, the appetite for enforcing social morality remains healthy and on some issues is ravenous. It is an obstacle to reform of unjust and ineffective systems of criminal punishment. How to address this confounds even sophisticated legal actors. In the law of obscenity, for example, courts can in one breath disown moralistic interpretations of what is obscene, declaring that it is to be defined not by violations of community standards but instead by reference to harmfulness, but then in the next breath affirm that what counts as ‘harm’ is whatever the community regards as harmful. The controversies also spill across national boundaries. Moral views that were once an unremarkable part of our own cultures and then became as minority, even pariah, outlooks, are being given new life. It was not so long ago that our societies held it morally unproblematic that men should be entitled to control women’s lives; that family honour should trump individual well-being; that children are vassals of their parents; and that law should support the true religion. Our moral consensus against such attitudes is destabilized by the mobility and migration of peoples who take a different view. Liberal societies have not always reacted well to such fresh encounters with their moral pasts. Much of the backlash against 1980s-style ‘multiculturalism’ is bound up with frustration, or perhaps weariness, at having to confront these views all over again, and now not as philosophical hypotheticals but as the actually-held values of neighbours and co-workers.
So the theoretical and practical issues about the enforcement of morality remain hugely important. Here, I poach a few ideas and arguments from that debate, but only in service of a different project. I focus instead on a problem that has been almost entirely neglected by legal theorists. The issue of the enforcement of morals begins on the footing that a society’s morality is already established—no doubt including diversity and complexity and open to interpretation—but nonetheless in a relatively stable existence. The enforcement question asks how law should respond to that actually-existing morality. But that image is inaccurate if it is anything other than a freeze-frame, artificially holding things constant while we inspect various details in the picture. This can mislead, because social morality is not fixed or given; it is fluid and dynamic. Like any set of customary norms—for example, the rules of grammar, or fashion, or etiquette—a society’s morality is in flux. What is more, one of the forces that moves and shapes that morality is its law. Or so I shall argue. And if that is correct we have a further issue to consider: how, if at all should law attempt to shape our morality?
In contrast to the very rich literature on the enforcement of morality, contemporary legal philosophy has almost nothing offer us on this question. Here, I try to make a start on it, looking to some recent work in legal sociology for help. I begin with some general observations about social morality. Next, I consider how such a thing could change, and—what is different—how it could be changed, including through the instrumentality of law. If morality can be changed, we need to consider whether it should be changed, and if so how. There is, obviously, no general answer to this last question, save the formally correct but empty one: law should attempt to change social morality for the better. But to exemplify the sort of analysis I think worth pursuing, I conclude with some less empty, but more conjectural, reflections on a case for changing aspects of our social morality about sex. I choose the example because it is the area in which the debates about the enforcement of morals were fought out, and also because it is where we now find some of the sharpest conflicts between liberal and more ‘traditional’ moralities.