Chapter 6, part 3, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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shall now turn to the conservative thesis. In so far as this is supposed to provide an alternative justification of the legal enforcement of the shared morality, it must not fall back on the claim that such enforcement is needed to prevent society from collapse or disintegration. Devlin himself does not distinguish between the disintegration and the conservative thesis. But in his book, Law, Morality and Religion in a Secular Society, Basil Mitchell tries to clarify and develop some of Devlin's arguments. He maintains that Devlin need not accept the two alternatives of either supporting his disintegration thesis with empirical evidence, or of turning it into the quite uninteresting thesis of identifying a society with a specific shared morality such that if there is any change [98/99] in this morality, then the society has by definition "disintegrated" (pp. 31-35). According to Mitchell, Devlin believes that the law has a right to protect the essential institutions of a society and the morality associated with these institutions (p. 67). The "essential institutions" are not institutions without which society would disintegrate or weaken, nor are they institutions without which society would simply be different. A society would be different in some fundamental way in the absence of an essential institution. But what counts as a fundamental change in society? How do we distinguish between essential and non-essential institutions?
In illustrating the idea of an essential institution, Mitchell refers to the Franks Report on Oxford University, and here he provides one criterion of what an essential institution is. "College life" and the tutorial system are regarded by the report as centrally important because, though other universities have their own virtue, "the distinctive merits of Oxford are bound up with these institutions" (p. 32). From this, and another illustration which Mitchell gives later, namely, the preservation of the Welsh language and the Welsh Sunday because they are "characteristically Welsh" [Basil, p. 34], it is clear that for him an institution is essential to a society if it is characteristic or distinctive of that society. But it is not at all obvious that the law is justified is protecting the essential institutions in this sense. Mitchell gives no sustained or clear arguments here. He seems to appeal to the value of diversity among societies, and describes this as "a simple extension to nations and other cultural groups of the principle to which Mill attached so much importance in relation to individuals, "there is no reason that all human existence should be constructed on some one or some small number of patterns" (p. 34). But Mill's principle is meant to promote individual liberty against the dominant pressures of a society. When an apparently similar principle is applied to societies instead of individuals, it is not a "simple extension" of Mill's principle, but an entirely different principle which may well threaten that very individual liberty that he tried so hard to defend. A totalitarian nation, free from external domination, can preserve its characteristic qualities by suppressing more and more of the freedom of its citizens, and in the name of [99/100] nationalism individuals can be thrown into gaol. Mitchell speaks of the apparent indifference to the quality of the essential institutions of a society as a defect in Devlin's position. But his own position displays a similar defect. He is aware of this when he refers to "the Herrenvolk doctrine of Nazi Germany or South African apartheid", but dismisses these as "grave corruptions" of his principle (p. 34). However, if Nazis and South African whites had dispensed with false theories of racial superiority, and rested their cases simply on the need to maintain the distinctive essential institutions of their respective societies, then they would merely have invoked the very principle Mitchell is defending.
Mitchell's use of his principle is based on a confusion between the application of the principle to ward off external aggression by another society seeking to impose a different pattern of life on the unwilling members of a particular society, and its use to prevent an internal change in the established institutions of a society by its own members. When used against external aggression, his argument is the familiar one that nations have the right of self-determination. Those opposed to colonialism will find the argument most attractive, even when the external aggressor is a nation which is, by generally recognized standards, more advanced culturally, economically, and technologically. The argument is also powerful when it is used to support the rights of distinct and well-defined minority cultural groups to preserve their cultural life from the demands made by a different and dominating majority group within the same society. But the argument, thus restricted, is used defensively to protect a culturally distinct group of people from losing its identity as a result of external domination. On the other hand, Mitchell's "extension" of Mill's principle seeks to justify the legal enforcement of the shared morality, and involves the imposition of a uniform pattern of conduct on all the members of a society. It is therefore paradoxical for him to claim that he is appealing to the value of diversity.
However, there are times when it appears that Mitchell's justification of the right of society to preserve its essential institutions and the associated morality leads to the protection of something other than society's currently shared [100/101] morality. For essential institutions are those institutions which are peculiar to a particular society: the "Welshness of Wales", that which distinguishes Wales from England. But in this sense, what are most "essential" to a particular society are not necessarily institutions and patterns of life which are now widely cherished, for societies may have become, with respect to these, "largely indistinguishable" from one another. What marks out a particular society from others may be a way of life that once was but now largely is no more, except perhaps in the memories of a few of its nostalgic older members. In such a situation, Mitchell's argument would lend support to the restoration of a morality and way of life that was once widely shared, even though they may now be equally widely rejected.
There is therefore some ambiguity in Mitchell's position. On the one hand, he uses the notion of the characteristic or distinctive institutions of society to support Devlin's case for the legal enforcement of the shared morality, and he is then putting forward a version of the conservative thesis. But, on the other hand, his use of the notion of essential institutions sometimes seems to justify the enforcement of a pattern of conduct which is fast fading away, but which was most distinctive of that particular society. This latter thesis is not the conservative thesis, and is far removed from anything which Devlin himself wishes to maintain.
Devlin's conservative thesis is very much tied up with his frequent appeals to the feelings of intolerance, indignation, and disgust of the ordinary person. The lawmaker's duty is to preserve the essential institutions of his society. He does not have to ascertain whether the moral values embodied in these Institutions are correct. His business is to find out what the shared morality is, and this can be done by ascertaining what is, and what is not, acceptable to the ordinary person. Devlin seems to imply that if the ordinary man feels strongly that a Particular institution is important, then this is an essential institution which the law may seek to preserve. He justifies this by appealing to the democratic process. He claims that, as a matter of fact, issues of great moment are settled by the ordinary citizen. This is as it should be because in a democracy "in the end the will of the people must prevail" (Devlin, p. 92). To reject [101/102] the views of the ordinary citizen as the final arbiter of how the law should act, and to appeal instead to the opinions of the educated élite in society, is undesirable. First, educated men often do not agree with one another on moral issues. Second, even if there is a consensus of moral opinions among the educated élite, to act on such a consensus is to set up an offensive intellectual oligarchy which is undemocratic in character.
Devlin's theory of democracy implies that it is undemocratic for legislators to enact unpopular laws. But if the criterion of whether a government is democratic is the extent to which it satisfies the will of the majority of the people, then dictatorships with mass support, but no free elections, would be quite "democratic". However, Devlin does not consistently hold on to his theory of democracy. He says that sometimes an ardent minority may carry greater weight than an apathetic majority (p. 96), and that a legislator's task is not just that of counting heads (p. 94). On these occasions, he seems to be moving toward the view that the opinions of the majority do not necessarily determine the acts of lawmakers, nor should they do so. Of course the views of the majority may sometimes set limits to what legislators may or may not be able to do, but legislators in a democracy are not obliged to follow these views, even when they are strongly and firmly held.
Neither Devlin nor Mitchell presents his conservative thesis as such for long. They often shift from the conservative to the disintegration thesis. But on those occasions when they do put forward the conservative thesis in its pure form, they seem to invoke either a mistaken theory of democracy, or that "romantic conception of nationality" which Mitchell so rightly deplores in others.
Devlin, Patrick. The Enforcement of Morals. London, 1965.
Mitchell, Basil. Law, Morality and Religion in a Secular Society. London, 1967.
Last modified 20 April 2001