In his Reflections on the French Revolution, Edmund Burke announced what he took to be a 'natural right': 'whatever each man can separately do, without trespassing upon others, he has a right to do for himself'. By calling this a 'natural right' Burke implied that its validity precedes any pronouncement of the law, and that a law that violates it—by criminalizing some act that involves no 'trespass' upon others—involves a transgression of natural justice, and can therefore be justly resisted by those who are oppressed by it.
Burke was not the first philosopher to think in this way—similar ideas can be found in Locke, and even in Aquinas. Nor, of course, was he the last: John Stuart Mill's famous pamphlet On Liberty involves a rephrasing of Burke's thesis in terms of 'liberty' rather than 'right', and 'harm' rather than 'trespass'. But it is worth drawing attention to Burke, since his account of natural rights occurs as part of a conservative protest against the 'rights inflation' that he witnessed in the pronouncements of the French Revolutionaries. Revolutionary rhetoric about the Rights of Man seemed to Burke to be so much dangerous hot air, exhibiting a preference for intoxicating abstractions over the concrete realities of legal order. There are indeed natural rights, he believed, but they exist as limitations on the legislative process, rather than as overarching goals. In a proper constitution natural rights are respected, since they are guaranteed by the ordinary procedures of the courts, and the long-standing tradition which limits the sphere of government. The noisy advocacy of the Rights of Man was being used, by contrast, to justify huge extensions in government power, and acts of confiscation and persecution that no court obedient to the principles of natural justice could possibly condone.
Burke was of course right about the French Revolution and the danger of seeing rights as positive goals rather than negative constraints. And there is something highly persuasive in the view that legislation should permit people to do whatever involves no 'trespass upon', or 'harm towards' others. However, two problems arise: first, what about the demands of morality? Secondly, how do we define these notions of 'trespass' and 'harm'? Thinkers like Burke assumed the existence of a moral consensus, expressed through custom and tradition, and broadly upheld by a law whose principal purpose was to protect the natural forms of human society. It did not occur to them that subsequent thinkers might try to drive a wedge between the ideas of immorality and trespass, so as to argue that you can breach common moral precepts and still not be trespassing upon your neighbour. For Burke a breach of the shared moral code was in itself a trespass. People have an interest in the conduct of their neighbours, and this interest is violated by the common forms of immorality. Mill's adoption of the 'harm' principal was perhaps the first move towards what subsequently became liberal orthodoxy: namely to distinguish legal from moral wrongdoing. Mill's background assumption was that ordinary morality was not so firmly founded or universally accepted a system, as to provide a sufficient condition for outlawing the behaviour of which it disapproved. There was need for another and more objective test, one that would enshrine and guarantee the fundamental liberal premise, which is that the law exists not to curtail our freedoms but to promote them. By preventing people from harming their neighbours, the law would promote the freedom of everyone.
So what is meant by 'harm'? One suggestion is that human beings are harmed by any invasion of their rights, and this does indeed seem to be what Mill had in mind. Although in another sense I am harmed by everything that inflicts suffering upon me, the law does not prevent that suffering if I have no right to escape it. For example, the law does not prevent, but on the contrary enforces, punishment, when the victim has, through some fault of his own, invited it. For punishment, in these circumstances, is not the violation of a right. Likewise the law, which acts to prevent libel and slander, does not prevent people from relaying truths about other people's wrongdoing, however much suffering this causes. It is only falsehood that harms, in Mill's sense, the victim of gossip, since it is only falsehood that violates his rights.
It is fairly obvious that the concept of 'harm', so understood, is very close to what Burke meant by 'trespass'. But it leaves open the possibility of separating the spheres of law and morality, in ways that Burke would probably not have approved. This became very clear in the debates over homosexuality and the law, following the British Wolfenden Report during the 1960s. The received liberal view was that homosexual acts between consenting adults in private harmed no-one in the wider world. Those who thought such acts to be immoral could not prove that they violated any right, either of the parties, or of others. Hence such acts could not be legally prohibited.
In the case of sexual conduct, the distinction between immorality and illegality has for a long time been upheld. But it is important to recognize that it has not been upheld, as a rule, on the grounds put forward by John Stuart Mill. Consider the case of adultery: this ceased to be a crime in Victorian times. Nevertheless, even if the partners fully consent to the act of adultery, that act harms another—the wife or husband who is the victim. It harms that person psychologically. But it also harms him or her in the sense implied by Mill's criterion: it invades his or her rights. The marriage bond, as normally understood, gives to each partner a right to the fidelity of the other; and even if this is not a legal right, it is on many understandings a natural right, one the violation of which involves an injustice. (So it is described by Aquinas, for example.)
Still, someone might respond by saying that sometimes the law permits actions which harm others, because it would be impossible to prohibit them in an enforceable way. Maybe that is the case with adultery, though clearly the Muslims don't think so. Even so this does not affect the point that where there is no proof of harm, the law has no right to intrude. And that, surely, is the case in the matter of homosexual acts between consenting adults. Some people—possible a majority—may think these acts to be immoral; but that is not yet a sufficient ground for making them illegal.
If you look at the arguments surrounding the Wolfenden Report and the subsequent UK Sexual Offenders Act 1967, you will find that argument used again and again, and rapidly adopted as orthodoxy. But you will also be struck by the thought that those who so adopted it did not, on the whole, belong to the moral majority. On the contrary, they were part of that liberal élite for whom homosexuality had long been part of the culture. They did not, themselves, experience the clash between legal and moral judgement that they were imposing on others; and to that extent the reforms that they advocated were not, for them, a challenge to their worldview or something that they had to swallow reluctantly, despite its bitter taste. For ordinary people, however, law reform in these matters is not the neutral thing that Mill and his followers suppose it to be. To discover that the law no longer enforces a moral prohibition that is fundamental to your worldview is to suffer a kind of existential challenge: a sense of being cut off from the public culture, so as to stand unprotected in the midst of moral threat. This feeling is part of the daily diet of Muslims in Western society, and we ought by now to be grown up enough to acknowledge it.
I am not saying such a feeling is right or appropriate, in our current circumstances. But it is natural, all the same, and the proof of this lies in the fact that the liberal élite is also subject to it. I will give a couple of recent British examples. When the Labour Party took office in 1996, the House of Commons was suddenly filled with people animated by fashionable left-liberal causes, many of them concerning animals and their supposed 'rights', but many also concerning the extension of the permissive agenda in matters of sex. During the next decade we saw the age of consent for homosexual intercourse lowered from 18 to 16, legislation to permit the teaching of homosexuality as an 'option' in schools, and legislation introducing 'civil unions' and quasi-marital rights between homosexual partners. All this was supported with arguments of the kind advanced by Mill, to the effect that 'you may think it immoral; but if you cannot prove that it harms anyone, you cannot forbid it'. And to those who protested that there is, for example, a serious risk to young people in being exposed to homosexual propaganda in school, at an age when it is now legal to engage them in homosexual acts, the response was one of outrage. Such slurs are proof of 'homophobia', and ought to be criminalized. (In Belgium they already are criminalized.) To put it mildly, the debate was conducted at the level of prejudice, with no attempt to investigate whether the reforms proposed might lead to recognizable harm, and from the premise that moral disapproval was in any case no more than a quaint survival of values which have no part to play in a genuinely liberal society.
At the same time, however, when it came to animals, the ruling élite took quite the opposite view. One of their number introduced a private member's Bill to ban fur farming, which was subsequently converted into Government policy. The arguments given for the Bill, which had the support of the entire liberal establishment, carefully avoided all mention of liberty, rights and harm. Those concepts belong, after all to the opposition, which could reasonably claim that the liberties of fur farmers were being curtailed, with no proof of harm to other people—and, incidentally, no proof of harm to the animals either. (Though of course to apply Mill's concept of harm to animals is to assume that animals have rights, a contentious position that was not in any case argued in Parliament.) The arguments given for the Bill hinged on something called 'public morality'. By this was meant 'the aspect of morality with which the law rightly concerns itself, with a view to improving the observable conduct of the nation'. To rear animals for their skins, when these were to be used entirely for the production of luxuries, was regarded as so offensive to 'public morality' that it was well within the remit of a democratic state to pass a law forbidding it.
It goes without saying that this argument reverses at a stroke the jurisprudential foundations of legal reforms concerning sexual offences. When Hart and Devlin argued over 'the enforcement of morals', it was Lord Devlin's contention that the law had every right to uphold the moral consensus, in the face of liberal reforms which would otherwise permit acts regarded as deeply offensive by the majority. This argument was dismissed by the liberal élite as both oppressive and quaint. Faced with the opportunity to impose its morality on the nation, however, the élite took exactly the same line—with one notable difference, namely, that the 'public morality' which it chose to enforce was not that of a majority, but that of a minority of bien pensant puritans who, despite their habit of wearing leather shoes and woollen cardigans, cannot bear the sight of a Venus in furs.
There is another reason for taking that censorious line, besides the desire to impose an élite morality on others who do not spontaneously share it. By arguing from 'public morality', you make the resulting legislation immune to criticism on grounds of proportionality. This is well illustrated by the other example that I have in mind—that of the UK Hunting Act 2005, which introduces the criminal offence of hunting a wild mammal with dogs. The ostensible goal of the legislation was to promote animal welfare, something that it arguably does not do. But the legislation has an inevitable impact on trade within the EU, affecting the buying and selling of hunting horses, and similar matters, in ways that could be said to interfere with the free movement of goods and services within the Union. European treaties hold that any legislation which adversely affects trade within the Union must be shown to be proportionate to the goal that it is designed to achieve. Appealing against the Act on grounds of proportionality, a group of victims (mostly horse traders and livery-yard owners), argued that, since no proof was offered to Parliament that animal welfare would be bettered by the Act, and a large section of Veterinary and other opinion was convinced of the opposite, the Act could scarcely be held to be proportonial to its aim. In the face of this the Government shifted its position, arguing that in fact the goal of the Act had been to uphold 'public morality', that regardless of the effect of the Act on the well-being of deer and foxes, that even if it could be shown that those animals have been seriously harmed by forbidding what some argue to be the most humane way of culling them, it is still offensive to 'public morality' that people should be seen scrambling across the countryside in pursuit of a helpless animal, their faces aglow with unseemly pleasure.
That argument, which of course reminds one of H.L. Mencken's definition of puritanism, as 'the haunting fear that someone, somewhere, might be happy', was adopted in the Court of Appeal precisely in order to escape the test of proportionality. If the argument for legislating against against hunting is that it is immoral, then nothing short of a ban can achieve the legislative goal. Any attempt to argue for less stringent measures will be defeated from the start, and there is no need for Parliament or the courts to measure the proportionality between the measures imposed and the effect achieved.
But once again the 'public morality' being urged upon us by the politicians is the morality of a minority: one that can see nothing wrong with laws that destroy the privileged position of heterosexual marriage, that expose boys barely out of puberty to the advances of their homosexual teachers, or that do their utmost to legislate the gay 'scene' into a normal and accepted feature of modern life. The argument from 'public morality' is being used to forbid what is disapproved of; that from liberty to permit what is desired. There is neither consistency here nor principle, but simple opportunism.
I think we would all agree that, if there really is to be a distinction made, between moral and legal wrongdoing, and between the sphere of private freedom and that of public control, there must be some principle which we can invoke in order to draw the boundary. Whether or not that principle is the one advanced by Burke or Mill, or whether some new formulation is needed, it must exist if we are to have an objective procedure for determining what the law can and cannot forbid. If we don't have that procedure, or if we can chop and change, invoking liberty when liberty goes in our favour, and 'public morality' when it goes the other way, we are only pretending to distinguish law from morality. And recent experience of the UK Parliament, which is peopled by a new breed of inverted puritans, who are every bit as keen to impose their views on the rest of us as their 17th-century forebears, and every bit as keen as those forebears to claim the exemptions required by their own beliefs, suggests that there is a real temptation among those who find themselves able to make laws for the rest of us, to be guided not by the love of freedom but by the morally-inspired desire to extinguish it.
This, it seems to me, is the crucial point. You cannot have it both ways. If there is to be a genuine limit to the enforcement of morals, then it must be a limit for the liberal just as much as the conservative. It must be a limit that anyone could come up against, if he really has moral convictions, over and above the conviction that people should live according to liberal laws. If someone comes up against that limit, and then invokes 'public morality' (meaning his own private morality writ large) in order to transgress it, this simply means that he doesn't recognize it as a limit. Law for him is the servant of his own morality, and the morality of others is not the master of law but its slave.
In response to this impasse I want to return to two ideas that I have so far passed over: Burke's idea of trespass, and the distinction between the private and the public spheres. In land law a trespass is an invasion of a right of property; but Burke meant the term more generally, to denote any invasion of a right. In the Lord's Prayer the term is used to mean any kind of wrong, committed against others and against God. Invasions of right are wrongs committed against the person whose rights they are; but there are other wrongs, which cannot easily be expressed in those terms. Consider indecency, for example. A person who indecently exposes himself to passers-by commits a wrong against them; but not because he is violating a right. His wrong consists in presenting them with a perception that they do not wish to have: he does this voluntarily, and is therefore to blame. But there is no 'natural right to unsullied vistas' that he violated. If the law protects people from indecent exposure it is because it recognizes that there are ways of disturbing, unsettling and provoking people that go beyond their natural rights.
Nor can we say that people are harmed by indecent exposure. Maybe the extremely young or extremely sensitive can experience serious mental repercussions. But for most of us the reaction is simply one of disgust, together with indignation that anyone should have the presumption to inflict such a thing upon us. The perpetrator of this act is crossing a barrier, and that barrier must remain in place if we are to enjoy the peaceful coexistence among strangers that is the norm of human society.
This brings me to the other idea that I had previously passed over: that of the distinction between the public and the private spheres. Some actions, we believe, are permissible in private but not in public. Undressing is one of them, defecating another. And the concept of decency is absolutely essential to defining the distinction between them. There is nothing indecent about the act of undressing in private—not, at least, in the normal circumstances in which this act occurs. There is nothing indecent about the love-making of husband and wife in private. But when these acts are put on display they take on another character. They lose their innocence; they become an affront, a challenge, and an invitation to states of mind that have no place in the public sphere, and no place in the private sphere either—voyeuristic states which we regard as repugnant, without necessarily overcoming thereby the temptation to indulge in them.
Now it is here that we begin to see the significance of the word 'public' in the phrase 'public morality'. The public sphere has its own moral norms. There are things which, while innocent enough in private, lose their innocence when put on display. They lose their innocence because they invade the emotions and the peace of mind of those who observe them, upsetting the delicate balance on which the routines of society depend. Obscenity is the paradigm case of this—though one that it is increasingly difficult to see for what it is, namely, as an invasion not only of the public sphere, but also of the privacy of those who inhabit it. The obscene performance is one that puts something private on public display. It breaks through the barrier between public and private, violating the sense of decorum without which people cannot maintain the objectivity and distance from each other on which the public sphere depends.
The point here is not one that I find easy to make. However, here is one way of putting it. In our daily lives we make a radical distinction between the rules that govern our intimacies and those that govern our posture towards those with whom we are not intimate. The rules of the public sphere exist to maintain the kind of distance that makes it possible to live without existential involvements, to negotiate our path through the world of strangers with minimum entanglements and always by negotiation and consent. These rules must be anchored in law if they are not to be exploited by the predators and egoists, who will use them to their own advantage. For example, the public display of sexuality and sexual readiness, which seeks to rewrite all distant and objective relations as forms of entanglement and intimacy, must be strictly controlled. If it is not, then people will begin to see the public sphere as merely a messy and promiscuous version of the private, one into which they are at risk from the predators, and constantly invited to perceptions and emotions that are incompatible with a life among strangers.
Now the law exists to protect individual rights and freedoms; but that is not its only function. It also exists in order to protect and foster the public sphere. The purpose of the division between private and public is not, as liberals suppose, simply to maximize permission in the private sphere. It is there also to impose order in the street—the kind of order that is the precondition of the freedoms that we enjoy in the public sphere. The purpose, in other words, is not merely to enlarge the liberties enjoyed in private—valuable though many of these are—but also to confine those liberties to the private sphere, and to ensure that the things that people do in their bedrooms are not put on display in their windows.
If we do not accept that this is a legitimate function of the law, then we are in danger of losing the public sphere altogether. The forum in which strangers can act freely but at a distance from each other, in a posture of mutual respect, will be eroded. Many say that it is already being eroded, as pornography and 'in your face' rudeness gain a hold of the media and the manners of the street. Nevertheless, the law still does its best to maintain the rules of decorum, and to ensure that those who transgress them do not transgress them with impunity.
If we look at matters in that way, we can, I think, see another approach to the question of law and morality than that advanced by Mill. It is not that the law should withdraw from the moral sphere, making no judgement as to right and wrong, and concerning itself purely with the maintenance of rights—including the right to be wrong. Nor is it merely there to protect the individual from harms wrought by others, leaving him free otherwise to wreak whatever harms he chooses on himself. The law is there to maintain a public sphere, in which freely chosen relations between strangers are the norm. The law may permit activities between consenting adults that it forbids in public: but the goal may be less to permit private freedoms, than to prevent their public display.
On that view, there really is such a thing as 'public morality', which it is the business of the law to enforce. Of course, it is not the morality of the animal rights activists, nor is it offended by the wearing of fur (unless in the manner described by von Sacher-Masoch in Venus in Furs). It is the morality of public decorum, which seeks to confine those activities which have no part in the free society of strangers, to the sphere where they belong.
Seeing things this way we can propose limits to legislation that will impede the ambitions of the puritans, whether liberal or conservative, while also retaining laws of decency and decorum that protect our shared investment in the public sphere. Liberals could have their way in permitting homosexual acts between consenting adults in private, while conservatives could have their way in forbidding sex clubs which put those acts on display. Liberals could have their way in forbidding dog-fights and other activities in which sadistic gloating is given public endorsement, while conservatives could have their way in permitting hunting with hounds and the occasional fur coat at a party. Both will be constrained, both annoyed, but neither mortally offended.