ABSTRACT
Answer plan The quotation expresses the commonly held view that immorality and harmfulness are necessary but not sufficient conditions of criminal liability; that the legislator ought to consider further matters when deciding whether to criminalise or legalise particular conduct. The starting point in answering this question is the well known ‘debate’ in the 1950s and 1960s between Lord Devlin and Professor Hart: • the ‘moral’ theory: the Wolfenden Committee and Lord Devlin’s response to the
Report; • criticisms of the ‘moral’ theory – its irrationalism; • the ‘harm’ principle; • the limitations of the ‘harm’ principle; • considerations additional to the supposed immorality or harmfulness of the behaviour
– the social effects of prohibition and enforcement; • is immorality a ‘necessary’ condition?
