The news this week that The Gambia has passed a Bill that further criminalises homosexual conduct and imposes life sentences in cases of “aggravated” homosexuality, along with the continued coverage of the constitutional fate of similar legislation in Uganda, provides an occasion to revisit the most famous debate about the criminalisation of homosexuality in the 20th century in the West.
The debate is known in jurisprudential circles as the Hart-Devlin debate and arose out of the publication of a report (the so-called Wolfenden report) in the United Kingdom in 1957, which recommended the decriminalisation of private, consensual homosexual sexual conduct between men (sodomy).
The first salvo in the debate was delivered by Patrick Devlin – a well-known law lord and judge – in his Maccabean lecture in Jurisprudence for the British Society in 1959. The Wolfenden report recommended decriminalisation of consensual homosexuality in the United Kingdom on the basis that “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”. Against this view, Devlin relied on that dangerous and nebulous concept called “society” to argue that there can be no theoretical limit on the right of “society” to enforce morality through the criminal law. Hannah Arendt argued around the same time that the word “society” had become the watchword for a conformist cultural argument that “allows for only one interest and one opinion”. Predictably then, Devlin defined society in homogeneic terms (that is to say in terms that portray a marked anxiety concerning plurality, dissent and politics) by describing it as “a community of ideas” and stating that “without shared ideas on politics, morals, and ethics no society can exist”.
With this as his premise, Devlin continued that “an established morality is as necessary as good government to the welfare of society”, that there is “disintegration” in a society “when no common morality is observed” and that consequently society is as entitled to enforce its moral code through the law as it is to protect its government with laws against sedition and treason. To quote Lord Devlin: “The suppression of vice is as much the law’s business as the suppression of subversive activities, it is no more possible to define a sphere of private morality than it is to define one of private subversive activity.” To echo the well-known feminist slogan: in the world of Lord Devlin there was no private moral activity that was not at once at least potentially politically relevant, that did not register, at least potentially, in the public sphere and hence, fell to be the subject of policing in the broadest sense of that term.
In contradistinction to the feminist slogan that claims the personal as a basis for political emancipation, Lord Devlin claimed it as a basis for political oppression by arguing that where such private activity consisted in the practice of what “society” considered to be a vice, it had to be viewed as seriously and as threatening to society as an act of treason or sedition.
Consequently, so ran the argument, “society” had every right to protect itself against such a disintegration from within and, for this reason, Devlin concluded that there can be no theoretical limits to legislation against immorality. With this, Lord Devlin made short shrift of the Wolfenden Report’s assertion that “it is not the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour” other than those aimed at the preservation of public order, decency and the protection of the citizen against exploitation and injury. His argument also discounted, without more, the point of view of the report that society actually places a high importance on “individual freedom of choice and action in matters of private morality”.
In his response to Devlin, HLA Hart – professor of Jurisprudence at Oxford – made the important point that when we consider the right of a society to protect itself, we must surely ask the question what kind of a society we are talking about and what the supposed steps to protect it, would entail. As Hart writes: “If a society were mainly devoted to the cruel persecution of a racial or religious minority, or if the steps to be taken included hideous tortures, it is arguable that what Lord Devlin terms the “disintegration” of such a society would be morally better than its continued existence, and steps ought not to be taken to preserve it”. As regards laws purporting to enforce a sexual morality, Hart relied on John Stuart Mill’s harm principle to argue that power in the form of criminalisation could only be “rightfully” exercised over people in order to prevent harm to others. Private conduct that could not be said to be harmful, could not be outlawed by the criminal law. Hart continued to argue that the law’s interference with individual freedom in the context of sexuality could be regarded as inflicting a special form of suffering, since “the difficulties involved in the repression of sexual impulses and the consequences of repression are quite different from those involved in the abstention from ‘ordinary’ crime”. Sexual impulses he argued, constitute a recurrent and insistent part of daily life and the threat posed by legislative prohibition “affects the development or balance of the individual’s emotional life, happiness, and personality”.
In other words, it is Hart’s argument that sexual freedom goes to the heart of private life and personal freedom, that a society has an interest in the happiness and well-being of its members and that the prohibition of a practice that fundamentally concerns the emotional and physical well-being of a significant portion of the members of a society, constitutes a special instance where society’s enforcement of morality is not justifiable. Lord Devlin would have it that where society judges the homosexual as a threat to its continued existence it has the right to literally render the homosexual invisible, to obliterate her from what Jacques Rancière calls “the distribution of the sensible”, by banishing her to a place of isolation, loneliness, fear and threat. HLA Hart, on the other hand, would argue that society has an obligation to protect its members from exploitation and oppression by way of a re-distribution of the sensible that would include the homosexual subject as a full and equal – and thus visible – part. In the end, Hart and Devlin take fundamentally divergent views of society as a distribution of the sensible. Lord Devlin’s is a totalitarian society. It consists in an attempt to subordinate all individuality to the primacy of the society as a whole, whereas Hart’s is a society that I would refer to in Derrida’s terms as the society of the democracy to come.
Let me speak to totalitarian society first. The implication of my argument here is necessarily that I consider as totalitarian societies that persecute homosexuality, for from the point of view of the queer subject they meet the definitive criteria of such a society in that they consist in no more than a brutal deployment of the machinery of the state to liquidate the most private and intimate part of a person’s or group of person’s life. As regards the society of the democracy to come, Derrida’s argument is that democracy everywhere is never consistent with itself, always already deferred, more or less, different from itself. Liberal democratic orders (such as South Africa) that celebrate same-sex marriage as the pinnacle of sexual liberation and democracy all too often ignore the intimidation, violence and brutality that members of sexual minorities continue to suffer at the hands of “society” even in an order in which the letter of the law is now unequivocally on their side. Whatever the perspective, the queer subject’s struggle remains far from over. Indeed, in the overwhelming majority of African countries it has only just begun to rise to international consciousness. We are clearly still challenged to continue to resist in the name of a sexual democracy that remains elusive in varying degrees everywhere in Africa.