III
The problem of preventing the abuse of liberty is
graver than that of safeguarding people from the abuse
of power, and is far from being solved. It has been
pointed out that it would be unwise to relax legal
restrictions until people are disciplined to behave with
restraint without compulsion. Where is the line to be
drawn? John Stuart Mill in his tract On Liberty (1859)
drew it at harm to others; that is, he would use law
only to forbid activities likely to disrupt any and every
sort of society. Beyond this, he said, the law has no
business to invade privacy. An objection to this is that
no sharp distinction can be drawn between “public”
and “private” activities. Human behavior is a “seamless
web” and in numberless ways what one does in private
can have repercussions outside oneself, and vice versa.
That is why a British judge, Lord Devlin, argued, in
effect, that law may be used even in the sphere of
private activities whenever these are capable of
undermining the institutions which from the fabric of
the particular society (The Enforcement of Morals,
1959; 1965). Thus, the monogamous marriage has be
come an institution of Christian countries and has given
rise to certain precepts of moral behavior. Lord Devlin
would not place immoral activities, even though they
may be conducted in private, outside the reach of the
law if by their very nature they threaten the institution
which is the foundation of the accepted morality. The
danger in this argument is that a blind desire to uphold
institutions can so easily shade off into an abuse of
power.
It may also be contended that the state has an inter-
est in the moral self-discipline of its subjects. However
true and desirable this may be, it is important that
convincing reasons be given. As long as religion pro-
vides the basis for self-discipline, the law may hold
back; but when that influence starts to decline, mere
legal compulsion without alternative support, so far
from preserving a sense of moral duty, will only appear
to perpetuate taboos against which intelligent people
are bound to rebel. This does not mean that legal
restraints should be relaxed, for to do so at the very
time when the hitherto accepted basis of self-discipline
is being eroded is like cutting oneself adrift on a peril-
ous tide.
The prerequisite of freedom in the 1960's and early
1970's, then, is the instilling of a new sense of disci-
pline. It poses a problem to which no answer is yet
in sight, and as long as this is so, the history of freedom
as reflected in law must remain an unfinished story.
