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Copyright (c) 1998 University of Denver (Colorado Seminary)
Denver University Law Review

ARTICLE: Hart, Devlin, and Arthur Miller on the Legal Enforcement of Morality


76 Denv. U.L. Rev. 189


David R. Samuelson *



Arthur Miller took on no formal role in the Hart-Devlin debate, 1 nor does one find even in passing any mention of The Crucible 2 in the voluminous commentaries the debate has spawned. Yet The Crucible was as much a product of, and statement about, the popular controversy on law and morals that commenced in the 1950s as was the work first of Patrick Devlin, and then, H.L.A. Hart. Written six years before the debate's commencement, Miller's play reveals an astonishing grasp of what would become Devlin's and Hart's positions on the legal enforcement of morality. Further, as a statement on the issue, The Crucible resonates as powerfully today as it did when first produced some six years before the exchanges between the two jurisprudents began. Therefore, as we mark the fortieth anniversary of the Hart-Devlin debate, this article proposes to add to the debate the long ignored voice of Arthur Miller as one deserving our attention.

I will argue that The Crucible supplies a prescient airing of the general arguments advanced by Devlin and Hart. Miller crafts a world of past and present, grounded firmly on assumptions Devlin would later set forth in his Enforcement of Morals. 3 Miller then demonstrates how such assumptions fail under the weight of historical and psychological arguments that Hart, in philosophical form, would develop later in response to Devlin, first in Immorality and Treason, 4 then in Law, Liberty and Morality. 5 In so doing, Miller advances principles identical to ...
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