Report No. 64
3.5. Two views as to drawing the line.-
This necessarily takes us to the well-known controversy whether all behaviour which is deemed to be morally undesirable ought to be punished by the Criminal law. That a line must be drawn between the demands of sexual morality and the requirements of the Penal Code, is not in dispute. But two views prevail in the matter,-that is to say, with reference to the question where precisely the line ought to be drawn. According to the narrower view, the law should reach only acts causing positive harm.
According to the wider view, the law should also punish behaviour which, though not causing positive harm to the individual, may damage the cherished moral fabric of the society, and destroy values which are considered worth preserving at all costs. The usual testing ground of this controversy has been the subject of criminal sanctions for certain indecent acts between males; but the controversy is of a recurring nature. In the West, Lord Devlin and Professor Hart have been the chief exponents of these two ideas.1
1. (a) H.L.A. Hart Law Liberty and Morality, (1963).
(b) R. Dworkin Lord Devlin and the Enforcement of Morals, (1966) 75 Yale LJ 986.
(c) Hart Social Solidarity and the Enforcement of Morality, (1967) 35 U CHI L Rev.
(d) Kadish The Crisis of Overcriminalisation, (1967) 374 Annals of the American Academy of Political Sciences 157.
(e) Stephen Liberty, Equality, Fraternity, in Radcliffe (Ed.) Limits of Liberty, (1966), p. 435.
(f) Rolf, Sarborius Enforcement of Morality, (1971) 81 Yale LJ 891.
(g) Louch Siu and Crime, (1968) 43 Philosophy 38 (45).
(h) Rostow The Enforcement of Morals, (1960) Cambridge LJ 174.