Wormholes

The line that divides the criminal law from the moral is not determinable by application of any clear-cut principle…There gaps and promontories, such as adultery and fornication, which the law has for centuries left substantially untouched. Adultery of the sort that brakes up marriage seems to me to be just as harmful to the social fabric as homosexuality and bigamy. The only ground for putting it outside the criminal law is that a law which made it a crime would be too difficult to enforce; it is too generally regarded as a human weakness not suitably punished by imprisonment…The boundary between the criminal law and the moral law is fixed by balancing in the case of each particular crime the pros and cons of legal enforcement…The fact that adultery, fornication and lesbianism are untouched by the criminal law does not prove that homosexuality ought not to be touched. The error of jurisprudence in the Wolfenden Report is caused by the search for some single principle to explain the division between crime and sin. The Report finds it in the principle that criminal law exists for the protection of individuals…But the true principle is that the law exists for the protection of society…the law must protect also the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either dies.

1 note