Disclaimer: This piece was first published in 1959, Great Britain. Patrick Devlin was a judge, who famously argued against the legalisation of homosexuality on the basis of collective moral outrage. The relevance in this factoid is that it explains much of the information and examples used by Devlin and offers an excellent platform to reflect on his thoughts in the current context. It should also be noted that he later softened in his views.
Devlin sets out by answering the obvious first question: Is criminal law based on morality? He argues that yes, of course it is, for English law never allowed consent of a victim to be criminalized on. He explains that there are two objectives to a crime that could be judged by consent: the act of agreeing to be violated prior to the crime and the consent afterwards to desists from prosecuting a crime based on the victim’s wishes. He does acknowledge that certain crimes, such a rape, have no room for consent by their very nature but argues that many other crimes, such a murder, do.
To demonstrate his explanation of what a victim cannot do, Devlin lays out a simple case: If a victim agrees to be killed by her murderer e.g. to escape life (assisted suicide or a suicide pact) or because she feels the punishment justified, the murderer will nevertheless be judged. Likewise, if the victim of a crime forgives his aggressor after the crime and wishes to stop or not start to prosecute him, he can nevertheless not enter a nolle prosequi (a formal abandonment of a case). Devlin shows hereby that the law isn’t based on the protection of the individual but on the protection of society’s moral principles.
In a short but useful detour, Devlin mentions that our moral ideas are no doubt based on Christian teaching but that this is insufficient a source in light of the entitlement of the citizen to disbelieve.
To illustrate further how the law is based on standards of behaviour decided by society, he explains that religion has gone from public moral judgement (heresy) to a private matter - one may judge a religion as wrong or untrue but not as good or bad.
In the latter part of his piece, Devlin talks about the institution of marriage. He decrees that society condemns fornication and adultery and that this is enough to require a public morality that dictates over such topics. He goes as far as to say that a society without agreed upon moral ideas will fail and a society in which such agreed upon principles have eroded, will disintegrate.
Devlin finishes with a thought experiment.
Assume a man drinks every night, is this a threat to society at large? The answer is likely not. Assume now that a quarter or a half of the population drink every night, this will now undeniably affect society. One cannot set a theoretical limit to the people who get drunk nightly before society is entitled to legislate drunkenness.
His conclusion thus, is that a society is made up of both politics and morals and that public morals are and have to be the basis of criminal law.