Thursday, May 30, 2013

Gaining trust

I agree .. that homosexuality is usually a miserable way of life and that it is the duty of society, if it can, to save any youth from being led into it. I think that that duty has to be discharged although it may mean much suffering by incurable perverts who seem unable to resist the corruption of boys. But if there is no danger of corruption, I do not think that there is any good the law can do that outweighs the misery that exposure and imprisonment causes to addicts who cannot find satisfaction in any other way of life.

Lord Patrick Devlin's groundbreaking masterpiece in The Enforcement of Morals (1965) lies heavily annotated in pencil on my shelf, in the timeless companionship of its peers, from Hart, Mitchell, Berlin and others. At least from the time of Harold Laski's brilliant correspondences with Justice Holmes, the British academic meritocracy has invigorated American jurisprudence beyond the sight of most of our citizens, indeed most of their leadership, only to be discovered by schoolboys seeking models of rational inquiry. How often that misery to which Devlin so movingly avers did lead to preserving him in print at $2.50, for acquisition a decade later on the distant farm of Stanford, is less interesting to us today than his empathy for the crisis of exposure, weathered calmly now.

Devlin's is one of the most bracingly companionable intellects a library can domicile - one cannot say, contain - and his history of Wilson's diplomacy is a glory of the craft, which I've long expected to consider here. I would rather endure the glare of his mistakes than the shelter of all the condescension propagated so uncritically today in the United States, and echoed from its highest bench this Winter, because of the constancy of his poise between morals and their rôle in the law. One learns to trust the fairness of a man who's not an idiot or a sloth, who still would not have dinner at one's table.

Now we hear it said, the law can't lead the way, the oppressed have enough friends without troubling our Justices; and, Pilate-like, the jurisdiction over morals is a problem for the satraps in their states. Oh, give me reason, deeply tainted, before gaudy cowardice. The law is the act, opinion is its shadow.

I should not care, any more than
my critics would, to have my per-
sonal morality equated with that
which gains the highest measure 
of popular approval. But the ques-
tion is not how a person is to as-
certain the morality which he ad-
opts and follows, but how the law
is to ascertain the morality which
it enforces.

God save the Queen's Bench, and pro-
tect her Lords of Appeal.

Patrick Devlin
Late Fellow of the British Academy
The Enforcement of Morals
  Based on his Maccabaean Lectures, 1958,
  and debates on the Wolfenden Report, 1957
Oxford University Press, 1965©


  1. Good post. I, for one, have no illusions regarding the current DOMA case before the Supremes.

  2. Thank you for visiting. In its earlier, and possibly better days, this blog would have developed the connection more acutely between the earnest schoolboy, looking for the best thinking, and the gruesomeness of his wading through the contempt at that vulnerable moment, above which this judicious reasoning rose. I have great regard for Devlin, however, who argues enormously powerfully against the influence of his own bias in these essays; and in affection for my readers I encourage their discovery. He goes on, for example, to anticipate our frockbound rabble-rousers' blaming of the Loma Prieta earthquake and Hurricane Katrina on the subjects of this posting, in discussing the bigotry of the Emperor Justianian - saying, we have learned a little about earthquakes, and even some about sexuality, since then. This is incongruous, of course, in a culture of no consensus for learning.

    Illusions regarding this Court, I agree, are unsustainable.