德富林是對的：法律與道德強制

Devlin Was Right: Law and the Enforcement of Morality

德富林與哈特之論戰以及斯蒂芬對密爾的更早挑戰，都關乎刑事制裁懲罰不道德行爲的合法性問題。當代自由主義者以及大多數法官都站在密爾與哈特一邊，認爲因行爲不道德就予以懲罰幷非國家的合法功能。在有關具體法律的大多數問題上，我贊成哈特，反對德富林，認爲所考慮的特定行爲不應定罪。然而，我贊同德富林在於，不存在這麽一種原則性界綫，可以使不道德行爲與關乎刑事定罪的有害行爲涇渭分明。密爾的損害原則及范伯格關於法律限於個人自治與尊重人的價值保護均無法構成真正的“原則性”界綫。不道德的事就是不應爲的事。刑法作爲一種制度，其核心基本原理包括盡可能使人們不務不應爲之事，幷且充當譴責那些不應爲之行爲的手段，因此，不存在預先排除刑事程序作爲一種阻却手段的原則性理由。

Hart-Devlin debate and Stephen-Mill debate concerned the legitimate role of the use of criminal sanctions to punish immoral conduct. Contemporary liberal theorists and judges are united in agreement with Mill and Hart that it is not a legitimate function of the state to punish conduct simply on the grounds that it is immoral. On most issues concerning specific laws, I side with Hart, against Devlin, in believing that the conduct in question should not be criminalized. I side with Devlin, however, in believing that there is no principled line following the contours of the distinction between immoral and harmful conduct such that only grounds referring to the latter may be invoked to justify criminalization. Mill’s harm principle and Feinberg’s conclusion that the law should be limited to the protection of personal autonomy and respect for persons are not a "principled" line. The immoral is what is not to be done. The criminal law is an institution whose central rationales include making it less likely that acts that ought not to be done are not done and serving as a vehicle for condemning those who o what ought not to be done. The existence of principled reasons for ruling out (in advance) the criminal process as a means of discouragement therefore seems quite implausible.