H. L. A. Hart and Lord Devlin
The past has always been more interesting to me than the future, just as I have found pessimists more amusing than optimists and failures more attractive than successes. I do not say that my preferences are based upon universal principles or that everyone should share them; in any case I should not want to live in a world of mental clones of myself, even if it were possible. I merely describe my own preferences as they happen to be.
Now that my personal past is longer than my personal future, it is perhaps not surprising that I tend to dwell on, and even to live in, that past. The controversies of my youth seem to me more significant than those of today, purer and more disinterested as it were, though this of course is an illusion. Muddy water in a jar always grows clearer as the particles settle. Time sediments.
There were three public controversies that took place just before my early adulthood whose echoes were still audible when I reached the age of intellection. Again, I do not claim for them that they were the most important of their time in any objective historical sense, or that their outcome decided the fate of mankind, though in fact the outcomes did affect millions in a practical way. These are not the reasons why I return to them. Rather, there is a comfort in old battles that there is not in new; it is easier to flog dead horses than to break in new. That is why Cold Warriors still like to see the hand of communism everywhere (I am not averse to it myself) and atheists like to pretend that we are living on the verge of theocracy. We all like to kick a fallen idol when it’s down.
The first of the three controversies was about the nature of hypertension (high blood pressure). By far the most common form of this condition was called essential, that is to say high blood pressure without any discoverable pathological cause, but there were also less common forms, such as that in renal or Cushing’s disease, in which a cause was known. The question was this: Was there a discrete but so far unknown pathological cause of essential hypertension (which undoubtedly had pathological consequences), or was it simply a manifestationof the natural tendency to statistically normal variation in any biological feature, so that people had low or high blood pressure the same way some people were tall and others were short? The dispute, which happened before I was a student but rumbled on like a departing thunderstorm so that I heard all about it, might seem arcane, even scholastic, but in fact it was to change the face of medicine just as the germ theory of disease had done.
The protagonists in the controversy were two eminent British physicians, Sir George Pickering and Sir Robert Platt. The former was on the side of high blood pressure being simply the high end of a normal distribution; the latter believed that it was a discrete disease caused by a single gene. The debate was carried on acerbically and, according to many observers, interminably, for ten years at least. No man, certainly not of any eminence or character, gives up his hypotheses lightly, not without a fight or without saving ad hoc sub-hypotheses of dubious intellectual honesty. Some thought that the two combatants valued the combat more than the truth of the matter at issue, and carried on the dispute for its own sake. Another eminent physician, Sir Douglas Hubble, wrote a satirical poem:
Schoolmen contending, ego on high.
Words without ending, truth’s never nigh . . .
Peace be to Pickering, silence on Platt,
Truce to their bickering, leave it at that.
It is generally believed, however, that Pickering prevailed in the end, though Platt had been the initial favorite to win. There were, however, ironies in the debate. Pickering was a believer in basic research as the source of medical progress, Platt in clinical observation. But Pickering’s hypothesis encouraged clinical observation while Platt’s encouraged basic research. Moreover, Pickering was a therapeutic nihilist; he was skeptical about the utility of treatment. On the contrary, two of his famous dicta were the following:
[Treatment] takes the form of drugs, whose ability to produce disturbing symptoms in the recipient has been amongst their remarkable properties.
To which he added:
Nor is there any evidence that such measures prolong life—though no doubt it seems longer.
At the time, Pickering was quite right: Drug treatment for high blood pressure gave patients side effects and the benefits were still uncertain. Platt, who believed that hypertension was a categorical and not a dimensional disease, was much more enthusiastic about treatment of high blood pressure. After years of research, however, it was established that risks of heart attack and stroke increased as blood pressure increased, in a proportional and not a categorical way: The higher the blood pressure the higher the risk, with no clear cut-off point. After an immense effort of research, it was also proved that lowering the blood pressure pharmacologically reduced the rate of stroke and heart attack and therefore saved both life and quality of life; moreover so many new drugs have been developed that it is possible in most cases, though not quite in all (a friend of mine being a notable exception, having recently been almost killed by his antihypertensive drugs), to find treatment that does not cause the disturbing side effects that Pickering said reduced the quality of life of people suffering from what was otherwise a symptomless condition.
Pickering realized that his view of the matter, if accepted, would change medicine in a direction which he did not altogether like or approve. He was not an easy man, and someone who knew him personally told me that he was arrogant, not suffering fools gladly, which for him meant most of the human race. He had a sharp tongue—“A minor operation,” he once said, “is an operation performed on someone else.” He was unconventional, and on the cover of his textbook on hypertension published in 1968 he put, as a sly joke, the continuous blood pressure tracing of one of his juniors which showed elevation during sexual intercourse. But he was a man who cared for his patients as individuals, and he realized that the continuum theory of high blood pressure would mean that henceforth patients would be treated as an impersonal statistic rather than in an individual way, for risk factors rather than for diseases. And so it has proved—and not only with hypertension. This change means that, lip service to medical openness notwithstanding, countless millions of patients are prescribed drugs and take them (albeit inconsistently, rarely as prescribed) without understanding that they are unlikely to do them any good as individuals and that, after many years of taking them, it will be completely impossible to know whether they have done them any good or not. The debate ushered in a quiet sea-change in the daily practice of medicine.
The second controversy was a similar one concerning the nature of depression. I met one of the protagonists, Dr. M. W. P. Carney, a man of large personality and very definite opinions. He believed that depression was not just unhappiness on a continuous scale from mild to severe, but that there was a separate condition to which there was a strong genetic predisposition, melancholia, or endogenous depression. In this condition, people became severely depressed often for no apparent reason. The most evident success in life was not proof against it; it required no trigger, such as the loss of a loved one or a business failure, to provoke it. Indeed it could appear in the midst of worldly triumph. Persons with such a depression could be either agitated or retarded to the point of stupor; they often dwell on the guilt of a past action, exaggerating their wickedness and interpreting their whole lives in the light (or shadow) of guilt. They might become deluded, for example believing that they were destitute though they were very rich; in extreme cases they might end with Cotard’s Syndrome, believing that their bodies were rotting and even that they were already dead. (I once had a patient who believed that he had shrunk to the supposedly gangrenous tip of his nose, and had otherwise completely rotted away.) If their bed was next to a wall, they might quite literally turn their face to it and await death. They had to be watched especially carefully when they improved slightly, for then they had the initiative and energy to commit suicide—the psychiatric equivalent, perhaps, of Tocqueville’s observation that the most critical moment for dictatorial governments is the one in which their first steps toward reform are taken. Anyone who has seen a person in the condition of melancholia is unlikely to doubt that he is ill in the most literal sense of the word.
Such melancholia is rare and also unmistakable. But that does not mean that it is not the extreme end of a continuum, beginning with mild discontent over a trivial aspect of life and ending with depressive stupor. This was the view of Professor E. S. Paykel and others: that there is only depression and more depression. But, as he himself observed, the subject of the classification of depression is “sufficient to keep armies of psychiatrists disputing happily for years,” and dispute they did.
In practice, if not necessarily because it was true, the dimensional view won, and had the profound psychological and cultural effect of banishing unhappiness from the world. Henceforth no one would be unhappy, only depressed. This was manna to the pharmaceutical companies, who by a combination of luck and deliberate misrepresentation managed to turn a number of drugs, marginally useful at best, into world best-sellers, to the great advantage of their shareholders. Not to be happy was now a disease rather than a normal human experience or a natural consequence of the way we chose to live. And the turn to tablets relieved us of the painful need for self-examination. It is not that we have followed too much the devices of our own hearts, or left undone those things we ought to have done and done those things we ought not to have done. Rather, we have a chemical imbalance that explains everything from our cruelty to our concupiscence.
The last of the three controversies pitted the judge Lord Devlin against the philosopher of law H. L. A. Hart over the matter of the law’s role, if any, in the enforcement of morals. In essence, the dispute boiled down to whether there was, in principle, any clear dividing line between where the law could legitimately enforce morality and where it could not. Lord Devlin thought that there wasn’t such a dividing line and Professor Hart thought that there was. Lord Devlin thought that while there might be a prudential or humanitarian limit to legislation against immorality, there was not a theoretical one; Professor Hart thought that the law had no role in the suppression of vice independent of the harm it might cause others. Again, in essence, this was a recapitulation in modern dress of the disagreement between John Stuart Mill and James Fitzjames Stephen. I was viscerally on the side of Lord Devlin, though at the time I found it hard to say exactly why since I counted myself liberal, or liberal enough.
Not surprisingly, both authors quoted the famous passage from On Liberty that is the nearest to a sacred foundational text in the modern world:
that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. . . . He cannot rightfully be compelled to do or forbear because it will be better for him to to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.
The other passage common to both participants in the controversy was from the Wolfenden Report, a British government report into the law relating to homosexuality and prostitution. Even if only infrequently and arbitrarily enforced, the law forbade homosexuality in private as well as in public, and the report suggested the decriminalization of homosexual relations between consenting men in private (lesbianism had never been a crime). The passage that both authors quoted was as follows:
Its [the criminal law’s] function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, further than is necessary to carry out the purposes we have outlined.
The author of the Wolfenden Report, Lord Wolfenden, reviewed Hart’s little book, Law, Liberty, and Morality, in refutation of Devlin’s lecture “The Enforcement of Morals,” in the Spectator, and said that “Fortified by the spirit of John Stuart Mill he takes on Sir James Fitzjames Stephen and Lord Devlin; and, with a sabre in one hand and a rapier in the other he makes a pretty comprehensive job of it.”
I don’t agree with this assessment, though I daresay that most people who still remember the controversy even in outline would agree with it; and certainly in the court of public opinion or history (if history has a court) Hart won the debate. Permissiveness was beginning to be the zeitgeist, and all was good that aided its advance.
In fact Devlin agreed with Wolfenden’s recommendation with regard to homosexuality, but he realized, as Hart apparently did not, that to show that a particular instance of supposed immorality should not be prohibited by law is not the same as showing that no instance of immorality should be prohibited by law. Indeed, one of the reasons that the law with regard to homosexuality was in the end liberalized was that the moral attitude to homosexuality itself changed—among the educated it was increasingly denied that homosexuality was immoral. If there had not been such a change in attitude, the law would almost certainly not have been changed. And it was Devlin’s contention that no society was viable that did not possess a moral code that it was prepared to enforce, albeit a code that might—indeed must—change. But it was inconceivable that there should be no code at all enforceable at law.
Among other reasons that the enforcement of morality could never be eliminated once and for all from the law were the inherently moral concepts of harm and public decency upon which Hart based his argument. What is considered decent enough to be shown in public not only changes with time, but is irreducibly dependent upon moral judgment. One of the main harms of indecent displays is that they encourage the spread of such displays, so that society becomes coarsened thereby. But if the indecency itself is not morally wrong, there can be no objection to it even if it offends many, for no one in a free society has a right to go through life unoffended. Yet a society in which nothing were thought too indecent for public display—a society without any taboos whatever—would probably be unendurable and certainly most unattractive.
Hart was clearly worried about the possibility that people might consent to be harmed, and (fatally to his argument) departed from Mill in allowing that, where this happened, the law had the right to be paternalistic, to protect people from themselves. He wrote:
In Chapter 5 of his essay Mill carried his protests against paternalism to lengths that may now appear to us fantastic. He cites the example of restrictions of the sale of drugs, and criticizes them as interferences with the liberty of the would-be purchaser rather than with that of the seller. No doubt if we no longer sympathize with this criticism this is due, in part, to a general decline in the belief that individuals know their own interests best, and to an increased awareness of a great range of factors which diminish the significance to be attached to an apparently free choice or to consent. Choices may be made or consent given without adequate reflection or appreciation of the consequences; or in pursuit of merely transitory desires; or in various predicaments when the judgment is likely to be clouded; or under inner psychological compulsion; or under the pressure of others of a kind too subtle to be susceptible of proof in a law court.
In this remarkable passage we see the transformation before our very eyes of a libertarian into a dictator; “beginning from absolute freedom,” as Dostoevsky puts it, “I arrive at absolute despotism.” Hart did not realize that what he was justifying was a society incomparably less free and more illiberal than anything proposed by Lord Devlin. The latter recognized there should be limits to legislative action, though he could not say in advance of knowledge of a particular situation where they should be; but Hart’s doctrine, if taken seriously, was compatible even with North Korea. Less apocalyptically, we might say that Hart was a forerunner of modern Western society, with its peculiar and unstable amalgam of personal libertinism and bureaucratic interference and micromanagement. Devlin’s very lack of doctrine served as a protection against totalitarianism, soft or hard, as Hart’s doctrine did not.
In all three controversies, one sees the dissolution of accepted boundaries, which is perhaps the most salient characteristic of our intellectual, moral, and social epoch. Hypertension is a continuum, so more and more people seek the protection of treatment from hypertension’s baleful effects; there is no difference between melancholia and unhappiness, so that 10 percent of the population now takes anti-depressants; the law has no right to prescribe or proscribe what I do, so that I can comport myself as whimsically as I choose, your disgust being no rightful curb to my freedom.
Lord Devlin (I think) was subtler than this. Limits should be recognized and obeyed not because they are found in nature, but because, unless actively oppressive, they have been laid down and are society’s. As Doctor Johnson put it in his “Life of Swift:”
Whatever he did he seemed willing to do in a manner peculiar to himself, without sufficiently considering that singularity, as it implies a contempt of the general practice, is a kind of defiance which justly provokes the hostility of ridicule; he, therefore, who indulges peculiar habits, is worse than others, if he be not better.
This article originally appeared in The New Criterion, Volume 33 Number 1, on page 76
Copyright © 2021 The New Criterion | www.newcriterion.com