Report No. 29
44. Criminal law and Morality.-Even as regards acts of an anti-social character belonging to a class which can be regarded as "unethical" it should be borne in mind that every act which is regarded as immoral cannot be made criminal. The question of the relation between law and morality is a vexed one and we need not enter into a detailed discussion thereof1. Stephen's observations on the subject, however, seem to put the subject in a proper perspective, and may be quoted2:-
"The first point then to be considered is the nature of the popular and the legal conception of crime in general, their relation to each other and the inference which the existence of that relation suggests as to the nature and objects of punishments.
The great difference between the legal and the popular or moral meaning of the word 'crime' is, that whereas the only perfectly definite meaning which a lawyer can attach to the word is that of an act or omission punished by law, the popular or moral conception adds to this the notion of moral guilt of a specially deep and degrading kind. By a criminal, people in general understand not only a person who is liable to be punished, but a person who ought to be punished because he has done something at once wicked and obviously injurious in a high degree to the commonest interests of society.
Perhaps the most interesting question connected with the whole subject is how far these views respectively ought to regulate legislation on the subject of crimes, 'ought', meaning in this instance how far it is for the good of those whose good is considered in legislation that the view in question should be adopted, and 'good' meaning the end which the legislator has in view in his legislation. In other words, the question is, what ought to be the relation between criminal law and moral good and evil as understood by the person who imposes the law?
...........In what relation ought criminal law to stand to morality when the effective majority of a great nation legislates for the whole of it, and when there are no other differences of moral standard or sentiment than those which inevitably result from individual differences of opinion and unrestricted discussion on religion and morals?
The answer to this question is not quite simple. In the first place, criminal law must, from the nature of the case, be far narrower than morality. In no age or nation, at all events, in no age or nation which has any similarity to our own, has the attempt been made to treat every moral defect as a crime. In different ages of the world injuries to individuals, to God, to the gods, or to the community, have been treated as crimes, but I think that in all cases the idea of crime has involved the idea of some definite, gross, undeniable injury to some one. In our own country this is now, and has been from the earliest times, perfectly well-established.
No temper of mind, no habit of life, however, pernicious, has ever been treated as a crime, unless it displayed itself in some definite overt act. It never entered into the head of any English legislator to enact, or of any English court, to hold, that a man could be indicted and punished for ingratitude, for hardheartedness, for the absence of natural affection, for habitual idleness, for avarice, sensuality, pride, or, in a word, for any vice whatever as such. Even for purposes of ecclesiastical censure some definite act of immorality was required. Sinful thoughts and disposition of mind might be the subject of confession and of penance, but they were never punished in this country by ecclesiastical criminal proceedings.
The reasons for imposing this great leading restriction upon the sphere of criminal law are obvious. If it were not so restricted it would be utterly intolerable; all mankind would be criminals, and most of their lives would be passed in trying and punishing each other for offences which could never be proved.
Criminal law, then, must be confined within narrow limits, and can be applied only to definite overt acts or omissions capable of being distinctly proved, which acts or omissions inflict definite evils, either on specific persons or on the community at large. It is within the limits only that there can be any relation at all between criminal law and morality.
The relation between criminal law and morality is not in all cases the same, (a) The two may harmonize; (b) there may be a conflict between them, or (c) they may be independent. In all common cases they do, and in my opinion, wherever and so far as it is possible, they ought to harmonize with, and support, one another."
1. For a bibliography, see Devlin Enforcement of Morals, (1965), pp. 13 and 14.
2. Stephen History of the Criminal Law of England, (1883), Vol. 2, pp. 76, 77, 78, 79 and 80.