In a debate between tolerance and intolerance one is disinclined to side with intolerance. Nevertheless that, in a sense, is what I want to do in this paper. The particular debate I have in mind is the old one between H.L.A. Hart and Patrick Devlin about the legal enforcement of moral values.1 It should be noted, though, that the issue has by no means been settled in the minds of many people. The proposed repeal of the British law prohibiting the promotion of homosexuality (a law known as Section 28) “could destroy Scottish society,” according to Mazhar Malik of Glasgow’s Ethnic Community Resource Centre, echoing Devlin’s concern from the 1960s.2 In what follows I will first sketch and defend, partially, what I take to be Devlin’s communitarian argument and then attempt to explain what is wrong with it and how this should affect our estimation of the proper relation between law and morals. I will argue that at least some private ‘immorality’ can be defended without recourse to the liberal belief in a morally private sphere. In part I I look at the kind of communitarianism that can be found in Devlin’s work, in part II I support this reading of Devlin and expand on it by looking at some important passages from his work, and in part III I consider the reasons why his argument does not support legislation against gay sex, and, in fact, could be used to defend gay rights.
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