Sheree asked:

Is it possible to legislate morality?

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A few years ago, a case came before the British Courts of a group of sado-masochists whose leisure
activities included sticking pins and nails through various parts of one another's anatomies. As a
result of one of their over-exuberant sessions, one of the group was rushed to hospital requiring an
emergency operation.

The members of the group were prosecuted despite the fact that all the acts they did to one another
were done with each others' full knowledge and consent, and within the privacy of their own homes.
In summing up, the Judge affirmed that it was the proper business of the law to defend accepted
moral standards, which these individuals had clearly transgressed. They were found guilty and each
given a prison sentence.

The issue of the enforcement of morality was brought to a head in the 60's in the clash between Lord
Devlin and H.L.A. Hart. Devlin argued in his book The Enforcement of Morals(1965) that in certain
cases the law should be used to enforce morals. Hart argued vigorously against Devlin's claim that a
society could not hold together unless it was founded on an agreed moral base. Today Hart's
arguments seem generally to have prevailed.

It might be claimed that citizens are harmed by the actions of the sado-masochists because the very
thought of what the sado-masochists do causes offence. However, as J.S. Mill argued in his famous
essay On Liberty,the fact that a person is offended by someone's action does not establish that they
have been 'harmed'. According to Mill's Principle of Liberty, an adult person should to be allowed to
do what they want provided that their action does not cause harm to someone else. The question is
whether Mill was right about this.

You ask if it is 'possible' to legislate morality. There are potentially two questions here, first, whether
there are any occasions where one ought, other things being equal, to seek to legislate morality, and
secondly, whether in fact this can be done in practice. It seems to me that the extra powers that
would need to be given to the state to seek out moral lawbreakers would be too high a price to pay.
What actually happens in the UK is that we have an inconsistent situation where archaic laws are
occasionally enforced.

Today it is extremely hard to identify moral views over which there is reliable consensus. But suppose
there were. Suppose that everyone apart from the sado-masochists agreed that the practice of
sado-masochism is in itself outrageous and therefore morally wrong. Suppose further that there were
no practical obstacles to the enforcement of a law prohibiting sado-masochistic acts. Would the
introduction of such a law be justified? - My simple response would be, The fact that the majority
assent to a judgement does not make it right. The majority are entitled to feel outraged, but that is all.

Geoffrey Klempner