The Enforcement of Morals: A Delimitation of the Criminal Sphere of Morality

Introduction

It is without doubt, a reasonable one, that a State has authority over its citizens whether de jure or de facto. This authority of the State is what is denoted by the legally savvy as jurisdiction. According to Professor George, jurisdiction is when all persons within the territory[1] of a State are amenable to the laws of the State[2]. Per the foregoing, a necessary consequent of the authority of State over its territory is the authority of the State to make laws to govern persons within its territory. The laws include either civil or criminal laws[3]. By the latter, it refers to a kind of law that imposes punishments such as death, imprisonment and fine[4] for the doing of an act expressly prohibited by statute[5]. The analysis to be made in this paper focuses on criminal law as defined. It examines the scope of authority of the State to make criminal laws and to that extent, criminal laws that legislate and legitimize morality. In other words, this paper examines specifically whether a State has a duty to criminalize immorality and whether sexual orientation and preference falls within this sphere of morality.

Background and Antecedental Issues

Every theory is informed by the recognition of a problem be it hypothetical or actual. On this ground, the theory to be developed in this work was occasioned by the author chancing on a so called “PROMOTION OF PROPER HUMAN SEXUAL RIGHTS AND GHANAIAN FAMILY VALUES BILL, 2021- LGBTQ BILL”. The problem, a legal one, which the above-named bill poses is whether a State has power to legislate to protect its values grounded in morality and if yes, to what extent.

Lord Devlin and The Enforcement of Morality Thesis

The debate on whether a State has authority to criminalize certain acts based on the morality of its people is not novel. This issue is as old as its Greek kind which reflected itself in the trial of Socrates in Plato’s famous dialogue “apology”[6]. In modern terms, the view on this matter which has gained academic notoriety is the one espoused by Lord Devlin[7].

Lord Devlin argues that a State has an untrammeled authority to criminalize certain acts based on the morality of its people[8]. This reflects in his view when he stated that “I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality”[9]. Lord Devlin argues,that this authority of the State derives from two basic premises. First, a State has a right to preserve itself and that, connected to this right of self-preservation is the necessary protection of its morality; the thread which connects, holds and preserves society[10]. Second, he argues, that a State has a right to enforce what is in the interest of the majority (the people) and that, the morality which is enforceable in a State is the morality of the many (the majority)[11].

Per the foregoing, on the first premise, Lord Delvin argues that “without shared ideas on politics, morals and ethics, no society can exist”[12]. In support of this, he proceeds further to state that “society is not something that is kept together physically; it is held by the invisible bonds of common thought”[13]. Per this view, Lord Devlin appears to argue that it is necessary for the survival of society that there must be shared ideas, ecumenical in nature, which is preserved by institutions. To him, society cannot exist if these shared ideas do not exist since it will lead to divisiveness and anarchy. He maintains, that everyone has an idea of what is right or evil but insist that in every society, it is essential for that society to have a general idea of what is evil or good, which the people, regardless of their difference in opinion, must obey. Thus, this morality, the general ideas of right or evil is necessary for society to exist. He concludes on the first premise by stating that, society then derives the authority to legislate morality from the fact that, if it fails to, there can be no society as there will be no general idea of good or wrong which the people are to obey. I term this view as the preservation thesis.

On the second premise, Devlin argues, that in ascertaining what constitutes “morality” for purposes of criminal legislation, it is the values common to the many and the majority which the State ought to apply. This metric of ascertaining morality he based on the common law test of “the reasonable man TEST”[14]. To Devlin, if twelve (12) men or women are drawn from a pool of people in a society and they tend to unanimously resolve on what constitutes the values and morals of that society then it is that value and moral that constitutes the morality of the State(society). To Devlin, the validity of this derives from the fact that, this pool of men would only be stating what is applicable generally in that society and not themselves legislating what should be applicable. To him, the majority of men will only be stating the conscience of the society and nothing less or more. This view I term as the Majoritarian-right thesis.

Based on the preservation and the majoritarian thesis, Devlin concluded, that where the majority finds a certain sexual behavior as immoral, the State has absolute authority to criminally prohibit this act. Thus, Homosexuality can be criminally prohibited by the State if the majority desire it and considers it as immoral.

Wolfenden Report and The Sphere Thesis

Unlike the previous view which was that of only Devlin, this view is earmarked by the fact that it is the view of many persons who constituted a committee tasked with investigating and making report on the abolishing of homosexual and other offences in the United Kingdom[15]. The report regarded criminal law as a restrictive functionalist venture with the function of preserving public order and decency, protecting the citizen against exploitation and corruption of others (vulnerable, young and weak in mind and body) and protecting the citizen against offensive and injurious conducts[16].The committee argued that criminal law is intended only to serve the functions listed above. In support of this, the committee invented the two-sphere distinction. The committee argued that, in the affairs of society, there is the public and the private sphere. It proceeded to state that, criminal law to the extent of its functions operates within only the public sphere and that the private sphere, which is more concerned about matters outside the functions of the criminal law as listed above, is no business of criminal law. In other words, criminal law has no business in the private sphere of life which matters of sexual choices, preference relates to. It is the view of the current writer that the Wolfenden report appears to take the utilitarian view of John Stuart Mill as argued for in his famous work “On liberty”[17]. J.S Mills succinctly represented this when he stated that:

“That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action 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. His own good, either physical or moral, is not a sufficient warrant.”[18]

Per this, it is argued for that, the law has a separate sphere in which it operates and in matters that affect the individual in terms of what is good for her and interests her which does not violate the rights of others nor threatens the survival of the State, she is free to pursue them without legal restriction. If one considers closely the functions of the criminal law as outlined by the committee, they are matters which go beyond the boundary of the individual only and regulates a sphere where an act of one person is injurious to the interest of another or the State. Thus, where an action is neither injurious to the State nor another person, that act can be deemed as belonging to the private sphere which the criminal law has no business with. The report concluded that, homosexuality and sexual choices are within this private sphere, consequently, it is no business of the criminal law to regulate it.

Hartian Thesis and The Theory Of Minimal Criminalisation

This debate on the intersection between morality and criminal law did not miss the jurisprudential wand of H.L.A Hart. In reaction to Devlin on the issue of whether the State has authority to criminalize all actions which it deems immoral, Hart argued that there is an iota of truth in the statement that a State has a right to legislate all morality because it is necessary for its own preservation[19]. To Hart, crimes such as treason, murder, theft, genocide are crimes that a State has a right to criminalize squarely because without it, the State cannot survive[20]. He proceeds to state, that for a State to be justified in criminalizing an act on grounds that it offends the morality of a people, it must demonstrate, that the preservation of those morals is necessary for the survival of the State. In reaction to Devlin, Hart argued that Devlin failed in showing how matters of morality as regards sexual choices are matters necessary for the survival of society[21].

To Hart, the sole basis for which the State can be justified in legislating the morality of its people is on grounds that, the enforcement of morals is necessary for the preservation of society against a threat contained in immoral acts. To him, it is thus clear, a crystal kind, that not all morals or matters of morality if not legislated would amount to a threat to the survival of society. Consider a matter as whether a woman should be allowed to wear trousers. In fact, there are certain religious societies that prohibit same on grounds that it is immoral. But wearing trousers or not does not pose any threatened harm to the survival or preservation of society hence, the State cannot have a right to criminalize the wearing of trousers. In the same light, Hart argues that, matters of sexual offences does not pose a threat to the survival of society as Devlin would have us believe. Hence, Devlin’s failure to demonstrate how homosexuality amounts to a threat to the survival of society suggests the implausibility of his view or a failed attempt to use his two premises; the preservation thesis and the majoritarian thesis to justify the conclusion that the State has a right to criminalize homosexuality (sexual choices).

It appears as per the foregoing that Hart sides with the position of the Wolfenden Committee to the extent that criminal law is only necessary in matters of public order, preservation of society and protection of the weak and the vulnerable. Where morality purports to enter into the sphere of the criminal law, it must be that the criminalization of an act based on this view of morality is necessary for maintaining order, preserving society and protecting the weak and vulnerable. And the prohibition of sexual choice to the extent of two consenting adult persons of the same sex fails does not in any way preserve order, preserve society from extinction or protect the weak or vulnerable.

Dworkin Thesis and The Test of Reasonableness And Consistency

On matters of jurisprudence, wherever one sees the name of Hart, one should expect to see also, the name of Dworkin. This instance is no different. Dworkin like Hart rejects also Devlin’s argument, but his rejection differs from that of Hart[22]. Dworkin disagrees with Devlin “…. not on the idea that Society’s morality counts but his idea of what counts as Society’s morality”[23]. To Dworkin, criminal law should concern itself about morality and that, there is no legitimate basis for why it should not. He argues that the minimalist view of Hart is not sustainable since there are crimes which go beyond the mere preservation of society, protection of rights of others, maintaining public order and the protection of the weak and the vulnerable[24]. Crimes such as incest, duty to report a crime, prostitution fall within this set.

To Dworkin morality counts in criminal legislation but what counts as morality he argues, was wrongly conceived by Devlin. As per Devlin’s majoritarian thesis, morality is simply what a right-minded reasonable woman from society would consider as the values and morals of that society. This view, Dworkin disagrees with. To Dworkin simply because the majority deems a thing as a value/moral does not make it moral. Dworkin argues using the principles of consistency and reasonableness, to suggest, that it is only those morals that can be defended with reason and consistently with other principles of society that a society has a right to legislate. Thus, merely because a value is held by the majority does not make it a moral value worth enforcing. To him, if society can with reason defend a moral value, it consequently has a right to legislate it and it matters little whether it is held by the majority or the minority. Dworkin concludes by stating that “…… this in itself does not give society the right to prohibit homosexual practices. We cannot conserve every custom we like by jailing those who do not want to preserve it”[25]. The above demonstrates that according to Dworkin, merely because a thing is a custom does not warrant it being legislated as a criminal law. To Dworkin then, it is necessary to satisfy two grounds to legislate a custom. First, that custom must be shown to be moral to the extent that it can be defended with reason and it is consistent with other principles of society. Second, it must be shown that there is an institutional necessity for the preservation of that custom without which the institutions of society are threatened.

If one considers Dworkin’s view in light of Hart, it can be inferred that they both agree on the viewpoint that, not all customs of society are worth preserving using criminal law. But Dworkin adds that, even though the State has a right to use the criminal law to protect some morality, it is not every custom commonly held by a people in a society that counts as this morality. And that, the State has only a right to legislate those morals that it can reasonably justify as against other principles of society and defend against reasonable criticism.

Author’s Final Words Per the Ghanaian Context

The author holds the view that there is no legitimate ground justifying the prohibition of rights of homosexuals in Ghana to the extent of homosexuals not realizing and manifesting their right to sexual freedom. This view the author defends using three arguments.

It is argued that the right to sexual freedom can be imported under Article 33(5) of the 1992 Constitution to the extent that it is necessary to secure the “dignity of man”. Indeed, the phrase “dignity of man” does not lend itself to easy definition[26]. This esotericism is due to the inflaming and ever-expanding character of what “dignity’ is. It is herein argued that man essentially is a sexual animal as that inherent to being human is the urge to gratify one’s sexual desires. And that, the preservation of the sexual freedom of man is necessary for his dignity. To this extent, it is argued that if the manifestation of sexual freedom is in tandem with the general principles of society such as consent and non-violation of others’ rights, then the law has no business in prohibiting sexual freedom- adults engaging in sex among themselves whether between same or opposite sex. Since it cannot reasonably be suggested that two consenting adults of the same sex when engaging in their sexual rights pose any threat to society nor violate each other’s right inter se or that of any other person in society, then it is here concluded that on this leg, the law has no business prohibiting homosexuality.

Further, the author sides with Dworkin on the viewpoint that the mere fact that a thing is deemed by a majority as immoral does not necessarily translate it into being immoral. The ascertainment of the status of morality of an act is based not on the number of people who hold that act as moral but on the cogency of the arguments in defense of its morality or otherwise. Thus, the viewpoint largely held by Ghanaians that homosexuality is immoral merely because many Ghanaians deem it immoral, is flawed and same should be disregarded. Mere Passionate-majority disproval is not the metric for ascertaining that which is moral or otherwise. Illustratively, if majority of Ghanaians decide tomorrow to disapprove of tattoos and classifies it as immoral, that by itself does not make it immoral. Its immorality must be logically demonstrated by the rules of reason and sound argument. The author maintains that no such sound reason or reasonable argument exists pursuant to that demonstration.

It is further argued that Ghana cannot hide behind the view that “it must protect its customs and culture[27]” to prohibit homosexuality. As argued for by Hart, the mere fact that a thing is a custom does not by itself warrant the making of a legislation to criminalize acts that are in contradiction with that custom. Unless it is shown that the preservation of that custom is necessary for the preservation of society against a threat of non-survival, there is no basis for legislating to protect that custom nor criminalizing dissenting acts not in tandem with that custom. It may be misconceived by some that since homosexuals do not give birth by themselves, then homosexuality would lead to the end of society. I deem this view as flawed, garbled, a premature polemic exercise and as illogical. First, persons who engage in homosexual activities do not vow not to engage in extra-non-homosexual affairs for purposes of childbearing. In support of same, it is argued for that, bisexuals potentially can have children just as heterosexuals and these bisexuals fall within the sphere of “homosexuality and its related activities” [28] as described by the LGBTQ bill[29]. Thus, if bisexuals can have sex among themselves and bear children, then it cannot be posited in a brandish manner that homosexuality which bisexuality includes posits a threat to the survival of society.

It is further argued, that, if the threat of not bearing children is a basis for imposing criminal liability, then persons who use condoms or who decide not to marry to not have children or who intentionally undergo medical procedures not to have children must be criminally punished just as homosexuals. Since it appears commonsensical that no society can criminalize ‘the decision not to have children’, it appears necessary that no society can criminalize homosexuality simply because it allows for some persons not to have children. By way of addition, it is argued that mating is not the only means of giving birth. Thus, science and technology have made it possible through processes of insemination for homosexuals to have children without necessarily having to marry persons of the opposite sex and engage in sexual activities with them[30].

Finally, it is argued, that customs & culture are meant to evolve. To that extent, customs should not be rendered stagnant and denied the force of inertia by the criminalization of acts that contradict current culture and custom. Ghanaian custom and culture eschew adultery but do we see laws criminalizing adultery? Ghanaian customs and culture eschew lying but do we see laws criminalizing lying of every kind? From this, it can be inferred that in Ghanaian societies, there exist practices which are against accepted cultures and customs, yet these practices have not been criminalized.  This corroborates the point that an act merely being against a custom is not the basis for criminalizing it. If so, all acts that are against the custom and cultures of Ghanaians would have been criminalized or would be argued for by Ghanaians that they should be criminalized. But I do not think any Ghanaian reading this paper would argue for the criminalization of all kinds of lying merely because our culture does not encourage people to lie.

It makes sense then to infer that Ghanaian society considers issues of whether the practice violates the rights of others, threatens the survival of society, serves as a means of exploiting the vulnerable as the basis for criminalizing an act and not the fact that the act is not supported by existing custom or culture.  If one considers sexual affairs between consenting adult persons, there is no such threat to the rights of others, the preservation of society and the exploitation of the weak thus, no valid basis for criminalizing homosexual acts between consenting adults.

In conclusion, homosexuality demonstrably does not satisfy any of the test or metric for criminalization, hence, the state has no basis for its criminalization. Abort then the LGBTQ Bill-not too late to exorcise the attempt to re-incarnate the spirit of barbarism.

[1] Article 1 of Montevideo on Rights and Duties of States. 1933

[2] E.H Ofori- Amankwah, The Scope and Legal Basis of the Criminal Jurisdiction of Ghana, University of Ghana Law Journey 7 (1970), p. 3

[3] H.J.A.N Mensa Bonsu, The Ghana Legal System in an Inflationary Economy, 20 Rev Ghana L. 115(1996-200), p. 119

[4] Section 294 of Act 30

[5] Article 19(11) of the 1992 Constitution

[6] John M. Copper, Plato: Complete Works, Hackett Publishing Company (1977)

[7] Lord Devlin, The Enforcement of Morals, The Decades (1959)

[8] Supra, 140

[9] ibid

[10] Ibid, 138

[11] ibid

[12] ibid

[13] supra

[14] Ibid, 141

[15] https://en.wikipedia.org/wiki/Wolfenden_report

[16] Supra, 130

[17] Mill, John Stuart. On Liberty. London: Longman, Roberts & Green, 1869; Bartleby.com, 1999

[18] Supra, 13

[19] Hart, Social Solidarity and the Enforcement of Morality, 35 U. CHI. L. REV. 1 (1967)

[20] Supra

[21] Rolf E. Sartorious, The Enforcement of Morality, The Yale Law Journal Vol. 81 No.5(1972), 892-893

[22] Ronald Dworkin, Lord Devlin and the Enforcement of Morals, The Yale Law Journal. Vol 75, No. 6 (1966)

[23] Supra, 992

[24] ibid

[25] Supra, 993

[26] Adjei Ampofo v. Accra Metropolitan Assembly (no2) J1/4/2006

[27] Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 p. 2

[28] Section 1 of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021

[29] supra

[30] https://blogs.medindia.net/artificial-insemination-as-a-means-of-conception-6584.htm