the Reverend D Sherwin Bailey , Ph.D . public morality and the criminal law . when the Wolfenden ( homosexual offences and prostitution ) report appeared in 1957 , interest was focussed mainly upon its proposals for revision of the law , and especially that relating to certain forms of criminal homosexualism . in subsequent discussion , parliamentary debate , and legislation ( the street offences act , 1958 ) , legal reform of one kind or another has continued to be the dominant issue . recently , however , attention has been directed to a question of greater ultimate importance , namely , the juridical principle stated in chapter 2 of the report , and emphasized from time to time in the chapters which followed . some of the implications of this principle are considered in a valuable essay contributed to the Church of England moral welfare council &apos;s current series of pamphlets , a review of which affords an occasion to survey the course of the discussion to date . expressed in the simplest terms , the Wolfenden principle asserts that for legal purposes crime can not be equated with sin - that moral and legal wrongdoing are not necessarily one and the same , and that consequently there is a realm of private morality in which the operative sanctions are ethical , and the determinant of right behaviour is personal responsibility and not fear of criminal penalties - a realm , therefore , into which it is not the law &apos;s business to intrude . it was inevitable that such a principle should arouse criticism . it has been objected that the implied distinction between crime and sin is superficial , that private morality can not be isolated from public , that the delimitation of a realm of private morality exempt from the sanctions of the criminal law deprives the law of its preceptive function and its power of moral restraint - and so on . such criticism showed the need for a thorough examination of the principle itself , and of the relation which it implied between law and morality . is there any connection between sin and crime ; and should the criminal law attempt to define or enforce morality , and punish immorality ? these were some of the questions which Sir Patrick ( now Lord Justice ) Devlin set out to consider in his Maccabaean lecture delivered in March 1959 . Lord Devlin recognized that the criminal law can not now justify itself simply by reference to a moral law ; since the state leaves religion to the private judgement and does not enforce any particular , or indeed any , belief , it has forfeited its right to enforce a morality founded on religious doctrine . what then must provide the basis for the criminal law ? in order to answer this question , three others must be asked : has society the right to pass moral judgements ? if it has , may it enforce its judgements by law ? and if so , may the law be invoked in all cases , or may exceptions be made - and on what grounds ? Lord Devlin replies on the following lines : society has a right to pass moral judgements because the very notion of society implies a community of ideas and , therefore , a common morality founded upon general agreement as to what is good and what is evil ; and the individual must submit to the bondage of this common morality as part of the price which he must pay for the society which he needs . it follows that society has the right also to legislate against anything that constitutes a breach of the common morality and , therefore , a threat to the common good . to this right no theoretical limit can be set ; the attempt of the Wolfenden committee to set such a limit by introducing the qualifying idea of exploitation of human weakness as a special circumstance warranting the intervention of the law , is vitiated by the simple fact that all wrong-doing involves exploitation of some kind . none the less , flexibility is necessary in practice . morality embraces both public and private interests , and they must be reconciled in such a way as to permit the maximum individual freedom consistent with the integrity of society ; but the limit of toleration is reached when a real feeling of reprobation is aroused . society &apos;s standard of moral judgement is that of the reasonable man - the man on the Clapham omnibus , and when anything excites him to emotions of intolerance , indignation , and disgust , it is an indication of the presence of immorality demanding the intervention of the law . it is true , of course , that the limits of tolerance shift ; but the law reacts slowly to such changes , and the tendency is to avoid any alterations or concessions which might convey an impression of weakened moral judgement . thus the right of the law to enforce morality is explained and defended . finally , the claim is advanced that there is a definite and proper relation between crime and sin . morality is necessary to society , but it must be taught ( which is the office of religion ) as well as enforced ( which is the office of law ) ; religion , therefore ( which in a western context means the Christian religion ) is the ultimate basis of the public morality expressed in the standards of conduct approved by the reasonable man , even though the law can not enforce that morality on doctrinal grounds , but only on grounds of general acceptance by society . Lord Devlin &apos;s argument , in effect , amounts to a repudiation of the liberal principal that the only justification for coercion of the individual by the community is to prevent harm to others - for this is the principle implicit in the postulation by the Wolfenden committee of a realm of private morality into which it is not the law &apos;s business to intrude . in a broadcast criticism of the enforcement of morals , the Professor of jurisprudence in the University of Oxford observes that the novel feature of Lord Devlin &apos;s lecture is his view of the nature of morality - that while earlier opponents of the liberal view have rejected it on the ground that morality is in fact self-evident , being based on divine commands or the rational conclusions of human reason , he founds it rather upon something primarily subjective : the feeling of the man on the Clapham omnibus . the latter is the type of that legal fiction , the reasonable man - and reasonable , as Lord Devlin points out , does not mean rational . the attitude of this reasonable man may be nothing but a bundle of emotional prejudices ; but if the majority in a society shares his feelings , a common morality is established , and according to Lord Devlin &apos;s theory , may be enforced by law . Professor Hart subjects this view to a searching scrutiny . its fatal weakness , of course , lies in the fact that if a general attitude of intolerance , indignation , and disgust may in some instances be well-founded , in others it may equally be due to prejudice , superstition , ignorance , or misunderstanding . it would be disastrous if the law had no firmer basis than the emotions of the majority - if dispassionate reason , knowledge , and common-sense were not also allowed a voice in its determination . yet this is precisely what has happened in the realm of private morality which is concerned with sexual relation . homosexual practices between men in private are deemed to be criminal ( but not lesbianism , fornication , or adultery ) simply because such practices arouse in the reasonable man feelings of reprobation so strong as to demand expression in repressive statutes . it is not difficult to explain why the emotions of the reasonable man are excited by the thought of homosexualism and not by the thought of fornication or adultery ; but to explain such emotions does not make them right or rational . Lord Devlin &apos;s conception of public morality could be invoked to defend our persecution of witches in the past , or the various forms of racial discrimination with which we are only too familiar to-day . before legal effect is given to the judgements of a public morality based on feeling , it is necessary to ask whether behaviour which is emotionally offensive to the majority ( or which the majority can be induced to regard as emotionally offensive ) is harmful , either in itself or in its repercussion upon the general moral code . in Professor Hart &apos;s view , Lord Devlin does not satisfactorily consider and answer this question . he recognizes that a morality based upon the consensus of a majority , even if that consensus is one mainly of feeling , is essentially a democratic notion , and that democracy means the running of risks which are inseparable from majority rule . but he insists that loyalty to democratic principles does not require us to maximize these risks , yet this is what we shall do if we mount the man in the street on top of the Clapham omnibus and tell him that if only he feels sick enough about what other people do in private to demand its suppression by law , no theoretical criticism can be made of his demand . and in this connection it is well to remember the adventitious and irrelevant means by which such sickness can be induced - the propaganda and pressures of many dubious kinds which can build up artificial emotions of reprobation to the point where they have to find expression , and may do so through the law . on the other hand , it is good and necessary that society should be able to give authoritative expression to its genuine and well-founded moral judgements . this is most appropriately done , in Lord Devlin &apos;s view , by means of legal sanctions - a method which Professor Hart clearly repudiates , though he suggests no alternative ; in fact , this is a matter with which he is not directly concerned . for consideration of such an alternative , we must turn to the essay by Mr Quentin Edwards to which reference has already been made . more precisely than the other two authors he distinguishes between moral codes and criminal codes , and between sin , crime , and immorality . as to the first division , moral codes are mainly hortative and must be flexible enough to bring under condemnation even those offences , the culpability of which can only be measured subjectively ; while criminal codes are almost entirely prohibitive , and must be rigid enough to define offences so exactly as to reduce to a minimum the degree of discretion vested in the magistracy . as to the second : sin is commonly defined as the contravention of God &apos;s will by thought , word , deed , or the omission to do what is enjoined , and must not be confused with crime ( behaviour which is declared to be punishable by the law ) or with immorality ( behaviour which is below , or contrary to , the standards of current public morality ) ; nor must crime and immorality be treated as necessarily synonymous , for not all declensions from public moral standards are regarded as meriting criminal penalties . from these distinctions it is apparent that there is a group of wrongs or offences which are sinful or immoral ( or both ) but not criminal , and are also public in the sense that they may involve others than the agent , and are capable of disturbing the harmony of society . into this intermediate category come offences such as slander , and also acts of venereal wrongdoing . although they are not criminal , they are for all that unlawful , either in the strict sense of lacking the express approval or protection of the law , or in the broad sense that they are contrary to the accepted standards of good morals or the implications of the common law . this conception of the unlawful , as Mr Edwards admits , is necessarily somewhat imprecise , especially in the sexual realm , where the law &apos;s sexual morality is the highest common moral factor of the mass of the people - a definition which does not seem to differ greatly in substance from Lord Devlin &apos;s idea of public morality , and is open to the criticisms made by Professor Hart . none the less it has practical value because , among other things , it would enable the law to register and declare in the least objectionable way the current moral judgements of society . at present , such judgements can only be expressed through the sanctions of the criminal law ; whether or not they are so expressed depends , as we have seen , upon the emotional attitude of the community to the behaviour upon which its verdict is being passed . 