The ethics kit Book

"So in a democracy the existing laws contain the best and most comprehensive statement of contemporary social reality. They are not a perfect statement. There is always some unrepealed junk that nobody will make the effort to get rid of. Moreover, of its nature the law cannot be immediately responsive to new developments and may need as a corrective the observation of the man up aloft who gauges the strength and direction of the winds of change...until the point is reached when there is strong pressure against a particular law, the ideas of reformers, however well and articulately expressed, are not contemporary sociable reality but wishful thinking about the sort of society they would like to see; and if and when they become contemporary, it is improbable that they take the exact form of the wishful thoughts." pg 126

As a judge, I suppose Patrick Devlin saw himself as a 'man up aloft'. As such was able to come out in support of the decriminalisation of homosexuality, having argued so cogently against it in this book. Devlin's view of the relationship between the law and popular morality had not changed, his view of popular morality had. 'The Enforcement of Morals' is the most compelling thing I have read in jurisprudence since Law's Empire, and it addresses an important weakness in Dworkin's argument. That argument is that Law, or at least a legal system based on precedent is an autonomous system that works over time to make itself rational. The autonomy of the law thus renders us its subjects. The view fails to take into account revolution, where Law's subjects violently change the law to better suit contemporary social reality. Devlin's linkage between popular morality and criminal law recognises that for law to be accepted as such, it must be supported by a important element of popular morality.

There are at least two examples where this process is at work today: implementing Brexit in the UK, and restrictions on Islamic dress in France. Rational, liberal arguments about the sovereignty of Parliament in the UK, and the sovereignty of the individual in France seem confused and contradictory when confronted by intense expressions of popular morality. As a Conservative with little sense of conviction on either matter, my clearest hope is that the men and women up aloft gauge correctly, avoid revolution and preserve Law's Empire.