A Critique of Gore Vidal’s ‘Sex and the Law’
In the summer of 1965, Gore Vidal published an essay titled ‘Sex and the Law’. This essay was written for two purposes: the first was to contribute to the debate on the relationship between law and morality between H.L.A. Hart and Lord Devlin in 1963. The second was to encourage liberals in the 1960s to resist legal moralism. Vidal saw legal moralism as a regressive ideology that would stump the liberal mission if not promptly defeated (pp 194-195). Legal moralism is the idea that it is the responsibility of the state to use criminalisation and the legal system to police morality. This response will focus on the second purpose, examining the prerequisite arguments that Vidal makes to support his instruction, and I will mainly agree with Vidal on the needed detachment between law and morality.
Gore Vidal fiercely argues against Lord Devlin’s idea that “the function of the criminal law is to enforce a moral principle and nothing else”. Lord Devlin believed in the idea of a “recognised morality”, being the morality of the majority. Vidal argues that “recognised morality” is not a true conception of morality. He identifies a necessary gap between public and private morality. Vidal takes the example of adultery in England. Although considered morally wrong, there existed no statute that made it a legal offence. Lord Devlin thought that the three emotions of “intolerance, indignation, and disgust” are good indicators of when an act should be criminalised. The English example is used by Vidal to undermine Devlin’s argument, which inextricably connects public (what the people ought/should feel) morality and law – although morally condemnable, adultery was still legally allowed. Vidal was not convinced by the idea of a “recognised morality”. To have “recognised morality”, Vidal argues that you would need to quantify it, for example, with a poll. Furthermore, because morality is unquantifiable, Vidal did not think you could accurately establish a public morality. Even if this was possible, Vidal implies that a poll would still not be satisfactory. According to him, Lord Devlin proposes a moral framework that pretends to be a “recognised morality” but is, in reality, religiously dictated morality (p 188).
Vidal correctly states that it is difficult to define morality and suggests that it should not be up to the law to give us a definition of it – “defining immorality is of course not an easy task, though English judges and American State legislatures seem not to mind taking it on” (p 188). Vidal’s argument that morality alone should not inform the creation of laws because it is a highly malleable and flexible concept is mainly convincing. Moreover, Vidal’s emphasis on the separation between public and private morality is significant because it exposes a crucial weakness of law. Basing laws on the morality of the time can be a fruitless and harmful activity that has produced highly inadequate and anachronistic laws. Vidal mentions the criminalisation of buggery (anal sex) by Emperor Justinian I in c.482 because the emperor thought it caused earthquakes. When Vidal wrote this essay in the 1960s, adultery and sodomy were still illegal in the 1960s in the US. These laws are anachronistic because their source is a Christian morality that still informed legislation despite the separation of the American church and state. Vidal warns us of the danger of basing laws on a seemingly official morality that has led humanity to make irrational and bigoted legislative decisions. Vidal concludes that the state should never legislate on behalf of morality when there is no concern for the public order. Therefore, the law should not be used as a tool to enforce morality upon society.
On the other hand, Vidal’s strong propositions for the detachment between law and morality based on irrational and bigoted laws do not account for laws that have contributed to society’s progress despite being morally fuelled. For example, the notion of human rights in the 21st century has been established thanks to morally fuelled arguments. Vidal’s firewall against morality, excluding it from legislative decisions, would have weakened the cause of human rights. While laws can be fuelled by oppressive morality, they can also be motivated by morality that is progressive and contributes to positive change in society.
The law has evolved beyond a religious mission of the enforcement of morals. Vidal encourages liberals to actively engage with the existence of anachronistic laws. His critique of the relationship between law and morality reveals a model of society that he envisioned post-1960s. For him, the law could only be modernised if anachronistic laws were repealed. He was not convinced, nor reassured, by the idea of a dormant law – ancient laws that are rarely enforced, almost forgotten. According to Vidal, a body of laws needs to be constantly revised lest the state is capable of resorting to inappropriate powers that should no longer exist.
By Daniel Akerelle
