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Thursday, May 20, 2010

Lord Devlin and the Veil: Revenge of the Fallen

Reasonable people today believe that H.L.A. Hart had the better of Patrick Devlin in the debate over the criminalization of homosexuality.  An over-simplified little re-cap.  Lord Devlin, one of the arch-legal-moralists of his day (though much of what he stood for was said earlier, and far better, by Sir James Fitzjames Stephen), believed in the vital importance of some common, fundamental moral agreement for the survival of a society.  Conduct that violated this reservoir of common moral agreement ought to be criminalized, even if it did not violate Mill's harm principle.  The coercive power of law ought to be used to protect and fortify this shared moral terrain, as a mechanism of social self-preservation.  Hart's position in the debate (following Mill) was essentially to challenge the view that this sort of substantial moral consensus is necessary for the survival of a liberal state.  Yes, the legal enforcement of certain moral values (life, property, public safety) was necessary; but it is wrong, as well as unnecessary, for the state to use the rough engine of criminal law to protect the moral reservoir outside of these areas.  In the area of the criminalization of homosexual sexual relationships, Hart won.

But the veil controversies in Europe represent, I think, an impending victory for Lord Devlin, and perhaps one that portends other such victories in the future.

Here's a bit of Devlin to get warmed up: "There is [social] disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions."  When a certain practice elicits a deeply felt disgust, a sense of revulsion by the common or reasonable man, then we have reached, for Devlin, "the limits of tolerance." 

This is an important of the reaction to the veil now at play in certain Western European quarters.  This opinion piece in Le Monde from a few days ago by Professor Jean-Louis Halpérin, expresses well the Hartian position with respect to the question whether the burqa should be criminalized.  Note toward the end of the piece where Halpérin argues that the ban encroaches on private life and the right of people to choose their own 'life-styles.'  This is a distinct echo of the Millian/Hartian view.  And it is a view that has been thoroughly chastened by the opposition and a society that sees itself and its core values under threat.  The burqa is only really an external symbol of that threat -- it isn't really what Western Europeans are concerned about.  The no-burqa fine set to go into effect in the fall is quite modest; one assumes it would be a considerably more serious penalty otherwise.  What they're really worried about is the loss of cultural cohesion that Muslim immigration represents.  And they are right to worry -- the kind of immigration patterns that countries like France are witnessing portends nothing less than a dramatic change in the cultural make-up of Western Europe.

It's true that one might make the argument that this is really about public safety, and so bring it back within the sorts of values that Hart believed were the proper subject of criminal enforcement.  But that argument is not powerful enough to explain the intensity with which the ban is supported -- it's not like we've witnessed an unrelenting rash of crime by burqa-clad hoodlums (though there have been some of these). 

It may also be that Hart's view is in practice limited to the criminal regulation of certain forms of sexual morality -- perhaps only homosexuality -- I don't think we're anywhere close to seeing prostitution de-criminalized (though maybe the Europeans are closer).  When we're dealing with egalitarian values, liberal states are more prepared to regulate (though still rarely, I think, with criminal sanction).

To me, the cardinal force at work here is clearly Devlinian.  And given the nature of the politics now in play, immigration patterns, and the general cultural sensitivities taken to be under threat by an alien population, I predict more Devlin and less Hart in these and other future conflicts.     

Posted by Marc DeGirolami on May 20, 2010 at 01:23 PM | Permalink

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Hi Marc- I think that another complication with this issue that is often glossed over (including by people in Europe) is that many of those who support one degree or another of veil-wearing (very few people in Europe support the Burqa, I think)are citizens, many of them not even naturalized citizens, but native-born ones. This is especially so in France, but also in some other countries, too. I think that there is at least an argument that can be made for some cultural restrictions on immigration or naturalization. I don't find these arguments convincing, and think there are strong arguments against them.* But, they are at least more plausible than making the same arguments against fellow citizens, but often that's what's being done.
* A nice, short, and useful paper on the subject is Joseph Caren's paper, "Why Naturalization Should be Easy". I also discuss this issue, and argue against "cultural" restrictions on naturalization, in my paper "Citizenship, in the Immigration Context", forthcoming in the Maryland Law Review and available on my SSRN page here:
http://www.ssrn.com/author=410582 if I may engage in a bit of self-promotion.

Posted by: Matt | May 21, 2010 2:51:48 PM

As if on cue, here's BBC news about a 14 year criminal sentence handed down in Malawi for homosexuality, and the judge's sentencing comment, " "I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example."

http://news.bbc.co.uk/2/hi/world/africa/10130240.stm

Posted by: John Steele | May 21, 2010 11:59:00 AM

Asher, I do not agree. You are assuming that countries like France have adopted Rawls's political liberalism as a mode of governance. I don't think that's true. France is committed to what Rawls might call a fairly 'comprehensive' view of political life, and it is that comphrensive view which is having difficulty dealing with pluralist challenges. And while I might agree that a comparatively small part of the veil fight is about imposing an egalitarian view of gender on those who don't accept it for religious reasons, I don't think that's really what's driving this boat. First, it ignores the reality that many women actually want to wear the veil and are not being forced by their husbands to do so (putting aside, for the moment, the issue of when a personal choice is said to be truly freely chosen). Second, as I said, the veil affair is only the tip of a much larger iceberg involving the perception that an entire culture is under threat. It is not surprising that conservative voices (that is, voices advocating the conservation of an older culture) are winning the day when France's comprehensive liberalism runs up against what are felt to be insurmountable pluralistic challenges. Something's gotta give. And regrettably, the tenor of those voices has turned more and more xenophobic.

Posted by: Marc DeGirolami | May 21, 2010 8:06:58 AM

To me this is actually a paridigmatic Sandel/Rawls debate issue, not a Hart/Devlin one. If I recall my political theory classes, Michael Sandel contended in Liberalism and the Limits of Justice that Rawlsian liberalism isn't as liberal or value-neutral as Rawls thinks, because, particularly when the liberal state comes into contact with fundamentalist religion, it will tend to impose its egalitarian vision on non-egalitarians. Indeed, Sandel might argue that Hart's ostensible value-neutrality belies the fact that a state that takes the harm principle seriously will have to take sides when private actors (like men making their wives wear burqas) act in morally coercive ways. Otherwise, fundamentalist quasi-states within the state can deny individuals freedom to make moral choices. Besides, I think Devlin's view is so specifically bound to the conservatism from which it springs that it's stretching him a bit to say that an anti-burqa regulation, or hypothetically, a law that required churches to give out gay marriages, is Devlinian.

Posted by: Asher Steinberg | May 20, 2010 3:39:21 PM

Matt, thanks, I was hoping to provoke someone like you with expertise in both jurisprudence and immigration. I should say right out that I don't mean in this post to comment on the merits of these views, with one possible exception I'll talk about below. I only meant to analyze what I see as the arguments that are in play, and those that seem to be winning the day and that will, I think, win the day in the immediate future (with respect to minarets and other similar issues). I do not doubt that sometime in the more distant future, the concerns may seem over-blown. Time will tell.

I also think you are right about the disintegration thesis and the lack of evidence for it. I'm not certain that it's fair to attribute to Devlin the view that whenever there is a lack of moral agreement, societies disintegrate. I don't see how Devlin or anyone else could resist the conclusion that societies change and that moral disagreements can with time produce shifts in what is tolerated. Maybe a more charitable interpretation is the position that at any given moment, a society whose members do not share a set of fundamental moral beliefs (in a comparatively thin sense) is at risk of fragmenting, is already beginning to disintegrate. But if that is what he meant, he could certainly have been clearer.

On the issue of Muslim immigration, and related to the two points above, from the point of view of a person whose cultural background is being threatened, it may be difficult to predict the sort of changes that are truly threatening and distinguish them from those others which are simply part of the natural, and inevitable, shift in cultural mores. I should be clear that I oppose the veil ban. But I am not without sympathy for Western Europeans who are protective of their culture, and are having difficulty distinguishing one from the other.

Posted by: Marc DeGirolami | May 20, 2010 2:52:35 PM

One problem with Devlin's argument that you quote above is that there's no reason to think it's true that ""There is [social] disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration".

Devlin didn't give any unambiguous examples, and the plausible reason for that is that there aren't any. Some people may think that the sort of social change they don't like is "social disintegration", but this claim is usually implausible. (In many cases the "disintegration" looks like progress in retrospect as well.) And as for Muslim immigration to Europe, I'm far from sure that it's more significant or disruptive than the waves of immigration that have happened in many other countries. That Europe has significant problems with racism and xenophobia make it seem worse to many there, and life will change. But I think that threats of "disintegration" will likely prove as imagined and over-blown as in the past.

Posted by: Matt | May 20, 2010 2:21:19 PM

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