As a blogger, there is an ever-present temptation to follow the latest scoop, whatever it is, in a bid to attract more ‘eyeballs’… Inherently, blogging is a populist phenomenon. In that respect, it is not so different from the mainstream media, contrary to what most writers in the local blogosphere might think. If your content is predominantly a game of thrust-and-parry with the ‘MSM’, then you really can’t stand alone, can you?

So, if anything, I shall resist the temptation to follow the herd.

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Let me play devil’s advocate for a while. While I am against s. 377A and the criminalization of homosexual behaviour, many of the arguments marshaled by proponents for repeal are intellectually flabby. People are not fully aware of the moral implications of what they are advocating. So allow me to run through a few of these arguments briefly, and assess their validity.

Relativism: “There is no right and wrong, nor such a thing as an ‘objective’ truth; hence, we should not legislate against homosexuality.”
The relativist position, fleshed out, usually sounds like this. Everyone has an ‘opinion’, but no opinion is ‘right’. Hence, we ought not to criticize, and we ought not to legislate against something, unless it causes clear harm.

This is very flawed reasoning. In the first place, if there is no proposition that is morally valid, why the “ought” statements above? Strict relativism would mean that you surrender all ammunition to criticize someone else with (except perhaps based on pure deductive logic) — you couldn’t say anything was wrong. So in practice, no one really practises true relativism, and if you claim to be a relativist, you are merely being disingenuous.

Furthermore, note the reference to ‘clear harm’. The self-professed relativist somehow sneaks in the harm principle… isn’t he or she then asserting this to be universally true? More on the harm principle further on.

SCORE: 0 / 10.

Social Morality: “People’s attitudes towards homosexuality are changing, and laws should reflect this change.”
There are a few variations of this argument. One may argue that the opinions of the majority should be determinative. Or one may say that we should take a “reasonable person’s” opinion as representative of the whole society. Or one may talk more vaguely about the ‘views’ of society, an entity distinct from its individual members.

All these variations are erroneous in this important way: they assume that whatever someone thinks is right, is right (the is / ought gap). How does this then differ from a shouting match of who shouts, “I’m right because I think so!!!” the loudest?

Each variation is also vulnerable to strong objections. The first, ‘majoritarianism’, is an uncritical endorsement of a tyranny of the majority. The second is gibberish, until we have decided what exactly makes the reasonable person ‘reasonable’ — a moral evaluation. The third is obscurantist: a ’society’ does not talk, think, speak, or have opinions.

A more refined version of this “social morality” argument actually masquerades as a broader form of the harm principle, incorporating psychological harm — I’ll consider this below.

SCORE: 1 / 10.

Liberty: “We must be left free to conduct our lives the way we wish.”
Such a bare assertion of our ‘inalienable’ liberty is obviously untrue, and is only rhetoric. We accept, we want, our laws to legislate on many things, too numerous to list here. A more nuanced view on liberty would be far more persuasive; as it is, this argument is a house of cards.

SCORE: 0 / 10.

The Right to Privacy: “The law should not interfere in the individual’s affairs.”
Many things occur ‘in private’ that our laws still punish. Homicide may occur within the family home, or at least, away from the public view (in fact, most homicides do), but we still prosecute the offender. The same goes with rape, theft, assault, battery, etc. Simply put, we don’t look at what’s private and what’s public (as if they were a priori concepts), and then legislate only the public realm.

Quite the opposite. We decide what to legislate, and then we call the area which we don’t legislate, the ‘private’ sphere. The ‘privacy’ argument is really parasitic on other arguments, e.g. liberty or equality, that we use at the outset, when deciding which of the individual’s affairs to legislate, and which not to. By itself, it’s quite empty.

SCORE: 2 / 10.

Equality: “Homosexuals are human beings too, just like us.”
Yes, but what does this truism prove? The real question is whether a person’s sexuality is a relevant differentia as far as legal and moral judgment goes. That is, is homosexuality wrong? Or (if the relativist homunculus within you cringes at the previous word) unacceptable?

SCORE: 0 / 10.

NATURE: “Homosexuals can’t choose their sexuality, it’s in their nature; therefore, we can’t punish them.”
The same might be argued (and has been argued, countless times over) on behalf of serial killers, serial rapists, child molesters, terrorists, mafioso, football hooligans, and ugly Singaporeans. How does the lack of prior choice absolve someone of responsibility, or of getting one’s comeuppance, if there is one to be had? The point remains that, if to some extent you chose your acts, then you are morally responsible for them.

Second, the first proposition above is still scientifically controversial. The (admittedly sparse) reports of “reformed” ex-homosexuals suggest that it may be possible to change one’s sexual orientation — with a lot of time, nervous energy and stress, of course.

Third, and most significantly, how does the “no choice” argument strengthen the pro-gay camp at all? Choice or no choice, the point should be that homosexuality is not morally wrong (by whichever yardstick you choose). This argument is thus at best a red herring.

SCORE: 1 / 10.

Positivism: “The law should not be concerned with morality.”
Ah ha, someone who knows a bit of legal theory, a bit of HLA Hart, and wants to flaunt it. Well, here’s the bad news: legal positivism does not support the above stance.

There is a distinction between legal positivism as a semantic view, and as a normative view. Only the first is defensible: for the purposes of academic clarity, we may want to keep a firm distinction between law and morality, so that we know what the law is as a matter of social fact.

But we cannot then use legal positivism in a prescriptive way. Since legal positivism begins by stripping away all normativity, it forfeits the chance to make any normative claim. A statement like, “the law should not follow morality” is patently a normative claim which legal positivism itself does not support.

And if you insist that one is still able to make certain normative / evaluative statements about the law (e.g. s. 377A is discriminatory, and ought to be repealed), then what you’re really relying on another kind of legal theory (not legal positivism) to buttress those statements.

Furthermore, legal positivism is often paired up with the harm principle: “Laws should not follow morality, but should instead only prevent harm.” As I show below, however, Mill’s maxim is itself built on a moral theory. Any hope that our laws can be “neutral” is thus chimerical.

SCORE: 3 / 10.

The Harm Principle: “Where acts of intimacy occur privately between 2 consenting adults, in a way which harms no one, the law should not interfere.”
Many strands of thought are actually interwoven into this argument. The undercurrent is basically one favouring liberty. Then we’ve a reference to acts occurring ‘privately’; presumably, they don’t cause public offense. Finally, there is the reference to harm, and the need to protect against it.

Let’s look at the last 2 ideas a little more closely.

The ‘public offense’ argument is very suspect, simply because a puritanical, uptight public may still take offense at the very thought of gays and lesbians having sexual intercourse in their own bedrooms. Indeed, many who want to keep s. 377A probably feel this way. To rescue this argument, we must look again to the hypothetical ‘reasonable person’ with some mental fortitude. Again, we left wondering, “What precisely is meant by ‘reasonable’?” Until we figure this out, the fate of the ‘public offense’ argument is indeterminate.

Now, the good ol’ harm principle itself: don’t legislate unless there is clear and present harm. It’s convenient to restrict our definition to just physical harm, but medical science suggests that the causing of serious psychological harm should also be deemed unacceptable. So we’re thrown back to the possibility of ‘public offense’.

The million-dollar question is where we ought to draw the line. If there are people (as there conceivably might) who would suffer considerable distress at the thought of ‘alternative lifestyles’ being accepted, or at least, not being punished, ought the law to protect them?

Finally, the harm principle is sometimes packaged as a ‘non-moral’ or ‘neutral’ standard, something which everyone should be able to agree on regardless of their personal convictions. Well, this is only partially true. Everyone can of course agree that we should not cause harm, but this is hopelessly abstract. When it comes down to deciding what qualifies as ‘harm’, or who or what can be ‘harmed’, pandemonium breaks out, because that’s where the superficial consensus crumbles, and moral disagreement is exposed.

Nevertheless, the ‘harm principle’ does go some way in defence of the pro-gay camp.

SCORE: 5 / 10.

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Those were some of the arguments. I might pick this up again at a later date, and possibly articulate those arguments which I think are more persuasive than those I’ve set out already.

I’m actually rather appalled at the quality of what I’ve been writing… not because I don’t think my arguments are valid, but because I’m not using the appropriate terminology, making the relevant citations etc. I’m in a distinctly unphilosophical cast of mind though (unusually for me), unfortunately.

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Click here for Part 2.