The sins of authors should not bar their works from reading lists

Is The Merchant of Venice antisemitic? Is Adventures of Huckleberry Finn racist? Is Lady Chatterley’s Lover sexist? Questions persist about whether classism, colonialism, racism or sexism condemn much of the Western canon, and recently child sex abuse has joined the list. 

The late judge Lord Patrick Devlin’s 81-year-old daughter recently revealed the sexually and emotionally sadistic father he had been. Devlin’s The Enforcement of Morals has been a fixture for undergraduates since its publication in 1965. Suddenly, the man who once posed as Mr Morality emerged, like the tawdriest backwater cleric, as a child abuser.

Within hours, law lecturers took to Twitter, asking why we ever taught crusty old Devlin in the first place, and whether it is now time to bury him. I shall leave aside the obvious hesitation one might expect of legal professionals: namely, we have not heard Devlin’s side of the story. But while I take his daughter’s revelations as trustworthy, I do not believe they have any bearing on whether Devlin’s book still ought to be taught.

For many years, we had to accept (rather condescendingly) that Shakespeare was a man “of his time”. Then we would proceed to study historical antisemitism in order to articulate a critical perspective that the dramatist was presumed to lack.

In recent years, Shakespeare scholars have unearthed many of the hints that the dramatist scatters throughout his plays, as if to equip us with critical perspectives for scrutinising classism, racism, xenophobia and forms of sex and gender oppression. Far from being anti-Jewish, The Merchant of Venice arguably offers the most incisive diagnosis of social exclusion penned before the Enlightenment. Even if someone were some day to discover writings in which Shakespeare spewed bigotry at Jews, The Merchant of Venice would still offer piercing scrutiny of anti-Jewishness.

A parallel argument can be made for The Enforcement of Morals. It appeared following the 1957 Wolfenden Committee report, which recommended the decriminalisation of same-sex acts between consenting adults. In 1963, the Oxford legal philosopher H.L.A. Hart published Law, Liberty and Morality to support the committee’s findings for traditional liberal reasons: that all of us should be free to engage in whatever conduct we like when it causes no harm to others aside from moral panic.

Devlin accepted Wolfenden’s findings, but disputed Hart’s account. He denied that law and public morality can be separated into distinct spheres. To this day, the two books remain twinned, having set the tone for a debate that applies not only to sex but also to firearms, abortion, hate speech, hard drugs and a host of other issues. I doubt there is a pub in the land that hasn’t overheard such a debate waged by unwitting proxies for Hart and Devlin.

Like it or not, every known human society has used law to limit individual freedoms on grounds of community morals, and students need to debate the reasons. If you don’t believe me, try walking around your local town centre displaying large placards splashed with hard-core porn. Perhaps you ought to have that right. Devlin never says you shouldn’t. He tries only to explain why you don’t.

After his daughter’s revelations, one might wonder whether Devlin is really the person to be imparting such wisdom. Yet, as with other time-honoured authors, our task was never to read him uncritically. Far from nullifying Devlin’s account, his daughter offers a new vantage point for probing the authority with which the jurist could have made such pronouncements.

Indeed, there is a parallel between attitudes towards the law and attitudes about which authors should be taught at university. In both spheres, we may have grounds to question the status quo, but that does not mean that we should stop scrutinising authors or ideas that we find repellent. It is essential to any legal education that students hear the strongest arguments both in favour of admitting individual freedoms and in favour of restricting them. And the broader point is applicable far beyond law departments: if you want to defend a standpoint, be sure you have mastered the opposing views. It’s not about winning on one side, but about understanding many sides.

The person I least trust to protect my liberty is the one who seems perfectly able to explain why the state is wrong to deprive me of it, yet cannot persuasively explain when or why the state may be right to do so. Devlin does not supply the only grounds that governments may invoke to limit individual freedom, but he does show why some grounds have long held sway.

Shielding classrooms from seminal texts will not change the past. But it will do much to limit students’ critical faculties as they head into the future.

Eric Heinze is professor of law and humanities at Queen Mary University of London.