The Protection of Morals Under the European Convention for the Protection of Human Rights and Fundamental Freedoms

I. Introduction

On various occasions over the last thirty years the European Court of Human Rights ("ECHR") has endeavored to elucidate the notion of protecting morals. This concept provides a lawful basis for signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") to restrict particular rights and freedoms contained in the Convention. ¹ More than once, however, the ECHR has expressly recognized that no "uniform" concept of morals can be found across member states. ² And despite this lack of consensus, the ECHR has upheld domestic laws or law enforcement practices that have restricted citizens' freedom of expression or right to privacy under the Convention, in the name of protecting morality. These decisions are problematic not simply because they rely logically upon an undefined, ill-defined, or simply contentious notion of morals, but also because they can be seen to conflict with the ECHR's firm commitment to "pluralism, tolerance and broadmindedness." ³

The time is nigh for both the ECHR and the domestic courts of contracting states to carve out an acceptable interpretation of the notion of protecting morals, for the purposes of the Convention. This article proposes that in light of the ECHR's well-established commitment to the values of liberal pluralism, there is only one acceptable meaning of morality that, for the purposes of the Convention, is worth protecting. This construction is rooted in John Stuart Mill's analysis of "moral rights" ⁴ and must comprise what Professor Hart and others have called a "critical morality." ⁵ In particular, it says that the use of force to protect or preserve morality is defensible only where such coercion is applied to protect what Mill calls the moral rights of others.

As a corollary to the above argument, this article will also examine how morality in traditional legal-philosophical analyses about the legal enforcement of morality has a distinctively sexual bearing. Pornography, adultery, prostitution, group sex, anal sex, and sadomasochistic sexual practices occupy the debates about how far the state should be entitled to restrict freedoms in the name of morality, yet it is fair and important to ask why these activities, as opposed to distinctively asexual phenomena, such as tax evasion, discriminatory employment practices, and advertising misrepresentations, typically raise political and legal concern for the protection of morality. This article will propose, in effect, that the kind of sexual behavior that often raises questions of shared morality in the context of criminal law should have little relevance to a proper debate about the scope of authorized intervention in matters of morals. Indeed, this aspect of the article will try to establish that most of the attention paid to sexual activity in the context of debates about the legal enforcement of morals is wrongheaded.

The article will proceed in four stages. It will inquire first into the nature of morality, with a view ultimately to establishing what, if anything, is immoral about the kinds of activities commonly associated with the legal enforcement of morality debates. The second topic of discussion will be Mill's proposal that individuals and the state are morally bound not to injure those interests of others that could or indeed ought to be considered as rights. It will be argued that Mill's discussion of moral rights in particular is remarkably consistent with modern constitutional thinking and human rights jurisprudence that conceptually link the effective protection of civil or human rights to the promotion of certain democratic values. ⁶ In the third section, this article will look at a significant Supreme Court of Canada decision from 1992 that established the acceptable limits of government interference with Canadian civil liberties in the name of morality. ⁷ The Butler case, viewed in light of prior and subsequent case law developments in Canada, the United Kingdom...