Patrick Devlin’s The Enforcement of Morals revisited: absolutism and ambivalence

In the mid-1960s, the so-called ‘Hart-Devlin debate’ was generally regarded by criminal law theorists as having resulted in an unambiguous victory for Hart. Yet in a special issue of Criminal Law and Philosophy in 2013, marking the 50th anniversary of the publication of H.L.A. Hart’s Law, Liberty and Morality, well over half of the contributors regarded Devlin as having had the better of the argument. In this paper, I revisit Patrick Devlin’s The Enforcement of Morals, assessing the importance of the context in which it was written, and evaluating its legacy for criminal law scholarship today. I argue that, notwithstanding its flaws, Devlin’s text marked a bellwether in the development of the field. I also raise questions, however, about how far the text should remain a key focus in the ongoing discussion of whether and in what ways criminal law should enforce morality.