Abstract

The distinction between private immorality and public indecency plays a significant and perhaps a crucial role in H. L. A. Hart's argument in Law, Liberty, and Morality. This distinction, and the uses to which he puts it, have, however, been largely overshadowed in the ‘debate’ between Professor Hart and Lord Devlin which has centred around such ‘great’ questions as whether a shared morality is necessary for a society. I shall argue that Hart's position, in so far as it is based on that distinction, is quite untenable, and that even if it were to be a possible position, it would none the less be incompatible with the sort of ‘libertarian’ view of society expressed by John Stuart Mill, whose ‘spirit’, at least, Hart believes himself to be defending.