We'll move forward into the mid 20th Century. Another Irishmen. >> [LAUGH]. And another English po he wasn't exactly a politician, he was a judge and a philosopher, Lord Patrick Devlin. And Pat, Patrick Devlin was a Conservative of the Burkean sort. And he wrote a very famous essay that I want to spend a few minutes talking about called Morals and the Criminal Law. And it was a commentary on something called the Wolfenden Report published in 1957. Which really was quite a remarkable doc, document in that the House of Commons had posed the question to this committee what should be done about homosexuality and prostitution? This is 1957, right? We know in America this is McCarthyism is going on. It's the Cold war. Is, this is before the Liberal 60s or anything like that. And quite astonishingly, the re, the Wolfenden Report rec, recommended in 1957 in England that both homosexuality and prostitution should be legalized. And Lord Devin was outraged by this. And he invoked essentially the Burkean Theory, and it's important to emphasize that this is not a philosophical theory, it's a sociological theory, it's about what holds society together. And Burke's and following him, Devlin say, well it's the public morality, it's the beliefs, it's the accepted norms, it's the practices, it's the tradition that holds society together. And in our society says Devlin, we had, we, we, we are held together, the social glue is Christian Morality. I'm not saying Christian Morality's the right morality or the best morality or even the true morality. In that, that way it's a kind of curious. By a very curious route, it's, it's like role is political, not metaphysical. He's not saying it's the right. He's saying this is what society depends upon. And he's saying in, in Devlin's view, it's, it's Christian Morality. And so he says, morals and religion are inextricably joined. The moral standards generally accepted in Western civilization being those belonging to Christianity. Outside Christendom other standards derive from other religions. So he's not concerned about what goes on elsewhere. In England, here you see the Burkean again, we'll talk about our, our values, traditions and norms. In England we believe in the Christian idea of marriage and therefore adopt monogamy as a moral principle. Consequently, the Christian institution of marriage has become the basis of family life and so the structure of our society. It is there not because it is Christian, but it has gotten there because it is Christian. Right, so it's not saying that Christianity is the truth or anything like that, but it's, it, it is as he says,. It remains there because it is built into the house in which we live and could not be removed without bringing it down. And so he thinks in 1957 it would be utter madness to legalize homosexuality and prostitution, which most Englishmen at that time find abhorrent. Indeed his standard is sort of the man in the straight, again I say man, given when he was writing. At one point he says he appeals to what is it that the man on the Clapham omnibus finds disgusting? Right? That should, that should tell you you're stepping over some line, that the. Now if we wanted to update it we might say the woman on the A train in New York city, so we, we get the sexism out of that. The, the average person, right, that's, that's who we should pay attention to and the average person in England in 1957. It's not within a country mile of legalizing homosexuality and prostitution. It would, it would threaten the very foundations of English political order if, if parliament was to do something that radical. That's the sort of the essence of his view. What do you think about that? >> It's, so he's not, he's not so much concerned about what should and shouldn't be legal from a legalistic point of view. He's, he's concerned about what should and shouldn't be legal from the point of view of the average person. So he's- >> Yes. The average person has absorbed the public morality. They stand for the, the norms and beliefs in the, they, they're the basic traditional person. And so we should pay attention to the average person and what the, his, his little bumper sticker there says. What the average person reacts to with intolerance, indignation and disgust tells you something about a line you cannot cross if you are thinking about change. Yeah? >> Well what about the average person? I'm, I'm not traditionally impressed with the average person in any society. I mean, if you go out and you go to, you go to a, you know, go to some big you know, store and you talk to the first person you meet, you're not necessarily going to be impressed with their, with their view of the world. And you know, why, why are you primarily concerned with that person's point of view? I mean it's not going to be particularly educated, and it's not going to be particularly protective of anybody's individual rights, it's kind of. >> well, I think, you know, those are you, you're betraying how much you've absorbed the enlightenment project. Because, because he would simply say, well you know whatever somebody who's taken a Political Philosophy course might think. That it's the average person that holds the society together, and they're the, the views that count. So consider the US, for instance. In 1986 since we, since we, dealing with the subject of, of homosexuality in the, in the Wolfenden report. In 1986 a Georgia, the Georgia, at that time laws about sexual conduct were all state laws, in the US we have a Federal system. And a Georgia law outlawing homosexuality was challenged in the Supreme Court. And this is private homosexual conduct between consenting adults. And the court said, in very much in line with Burke and Devlin. The courts said it's perfectly acceptable for the state of Georgia to outlaw homosexual conduct between consenting adults. Again, reflecting the views in the society at the time. So you know, that's what you would expect even if, even if intellectuals from the East Coast might take a different view, or people from California might take a different view, you know, in Georgia in 1986 that was the view. Now, interestingly, 19 years later, 17 years later in a, in a case called Lawrence versus Texas, the same issue was presented and a Texas anti-homosexuality statute was challenged and the court reversed itself. The court struck down its decision of 17 years earlier and said it was unacceptable for the state of Texas to outlaw homosexual conduct,. Now what had changed in the, in the interim? Well one indicator of what had changed. Is from, from the facts I just can put up there on, on that slide. That in 1986, homosexuality was illegal in at least half the states, maybe a couple more. But by 2003, 36 states had repealed their bans of homosexuality. So I think what Devlin would say. And maybe even even Burke, but certainly what Devlin would say is well so, you know, between 1986 and 2003, the, the view of the average American had clearly evolved and was moving in this direction, and so the court was, was going along and, and affirming well, you know, not straying too far from the woman on the A train, so to speak or the man on the Clapham omnibus, to put it in its Anglo variant, and that's the way in which the law should evolve. What do you think about that? >> How does he know that the opinion, public opinion has- >> Okay, so that's a good question. And critics of this view often say, you know, who are these judges to say they know where the man on the Clapham omnibus is and, and usually they're projecting their own values and they certainly. You know, they don't have to run for election, so it's not like they have to be responsive to voters. They don't run opinion polls, they don't do social science. So to some extent, it's guesswork about what evokes strong reactions. Yeah. >> But that's what we pay judges to do. >> Mm hm. >> I mean, they're educated in these kinds of fields. We don't set legal policy by doing a poll within a local Walmart. >> Yeah. So they're like you know, you could say, the justice is here, they recognize all of that and they say well, it's data, it's data that in 1986, most states, at least half the states still held this to be illegal and we didn't think it was be the right thing for us to take on at least half the states in the country. And second guess that, but you know, by 2003. You know, there are only 14 states left that are holding out. It does seem that, that, you know, and isn't this the way to go? So they didn't do polls, and they didn't run for office, but they can see what the state legislators did, they didn't, it's not that they're totally without data. >> So he didn't want the legal policies to be too far ahead of public opinion. And clearly from you know, 19, 1986 to 2003, public opinion had changed. Um,but how do you protect the, the rights of, of the people who are on the outside of the majority opinion? bef, before these- >> Okay, so there were many people who were furious in 1986. >> Right. >> Right, who thought it was the wrong, I mean, well after in 1986 in America is not 1957 in England, right? It's three decades later and you know, what you might say about 1957 in England, much more debatable. So there's a lot of hard calls there. Okay, so let's just, since you're bringing up more recent considerations, lets come right up to 2014. In Uganda, in February of 2014, Uganda's President Museveni signed an anti-gay bill defying the whole world. Huge pressure from human rights groups, international groups, the Obama administration. And it, its, it outlawed homosexuality in Uganda, 14 years in prison for the first offense. Life in prison for acts of so called "aggravated homosexuality", whatever that might mean. And huge prison sentences for anybody supporting gay rights publicly in Uganda. And furthermore, what you might find shocking, is this was actually a moderation of the earlier law, which had the death penalty for homosexuality in Uganda,. And look at what Museveni said, he said, well, we Africans are not trying to impose our view on anybody else. So this could come straight out of Devlin or Burke. We, we're not talking about what people need to do elsewhere. We're not, we're saying, as he put it, Africans are flabbergasted by homosexual behavior. You think he was right? >> I think, yeah, the, it's probably right that they're generally flabbergasted by homosexual behavior. >> Well, if you Google it up this is the kind of thing you find surrounding that thank you for signing the bill, right? Obama keep away and then all this homophobic stuff that went on and, including outing 200 of Uganda's top gay people. So it seems like the Ugandan equivalent of the man on the Clapham omnibus, you know, is in line with what the Ugandan parliament just did. So what do we say about that? This is, you know, maybe Britain, more like Britain in 1957 than America in 1986 arguably. So what do you think about that? >> It looks like the majority of the population in Uganda is, is homophobic. And, you know, in some ways it's even democratic to produce a law like that, but I don't like that. >> You don't like it. What do you think? >> I think it's very difficult to argue with that and if you look at how you present it from Burke to, towards Devlin to, to, to It's basically the outlook, the view, it's the opinion and I don't know how to argue against it. I have a problem with it but what I can see in all these cases is that, okay, this is just State of the Nation. This is the state of our culture. This is our opinions, how we feel about it. >> Mm-hm. >> And let's then induce our way of thinking. >> Mm-hm. >> So is this right or wrong? I cannot say. But I have a problem with it. >> Yeah. >> And then the other question is, what about the minority? >> Okay, well,. >> Because I'm sure- >> There are, there were dissident voices, as I say, if you Google it up, you could find a few demonstrations of this sort, but for every picture that you find like that on Google, you'll find a hundred like this, right? >> Right. >> So there, there certainly were minority voices and people feeling deeply threatened and outraged by this, right? But, you know, there it is. So, so preliminary take away point from this initial for array into anti enlightenment thinking is that how every difficult it is to justify the idea of individual rights, and we've seen that that's enormously difficult because of the problems with natural law theory, and the problems with the Kantian gambit and so on. Trying to do without them, seems even harder. So, you know. What we should do with that is, is something we're going to tackle next. Starting next time. And we're going to look at. In modern, literally contemporary still living representative of the Anti-enlightenment tradition, a Catholic philosopher by the name of Alasdair MacIntyre. See you then.
