Law Fact(ory)

It is ironic that it is usually during the exam season where I feel most driven to write. Perhaps it is the clarity of mind that forced study brings about, or perhaps it is during the exams more so than any other time, that you truly feel the depersonalized, mechanized disjointness of it all. Each morning people come to school and scurry away into their respective studying holes, meet for lunch with it’s obligatory exam related moaning, and then bury themselves in books once again. The discussions, when they rarely happen, are brief, short and to the point. Questions are more often about addressing a specific question that might appear in an exam, rather than any sort of genuine interest. Interest? Are you mad? We all know it’s about marks. It is almost as if this were a menacing foreshadowing of the machinations of working life, a fate, it seems, that most are indifferent about, or in true Singaporean fashion, simply nonchalantly accept it as a social fact.

Just as the semester began, a partner from Rodyk and Davidson told me something to this effect: Law school is more than just about grades. It is, very truthfully, the best years of your life. Once out of school you’re never going to have the same sort of intellectual freedom to do what you want, and if you spend all this time just being a library fixture, then unfortunately you’ve missed out. There is of course a small matter of accountability to your grades which should not be neglected, but I think what that partner was trying to say is that it is far more important to learn and live, then to mug and study.

And if becoming a management partner can accommodate that view, then why don’t we all ascribe to it?

Requiem For Legal Theory

The recent 377a inspired debates provide an excellent canvas to apply certain legal theories into an everyday situation, since it ultimately called for a legal imposition of a positive morality. This rather late (after all the decision to retain the provision was reached 6 months ago) essay comes as a result of my very imminent legal theory exam, in which I fervently hope that this issue will arise in a question. Other than that short term impetus, I of course make no excuse in indulging in the greatest guilt of any writer – hubris. Quite simply I enjoy writing, and seeing my writing being read and comment on by other people. With the short explanatory note put aside, I now launch into the essay proper.

The question whether to criminalize a certain kind of human behavior is a classic practical problem faced by legislators. It is definitely not limited to homosexual behavior, since abortion, oral sex and prostitution have all gone through this same rite of passage. Homosexual behavior is the issue in vogue for Singapore, which makes the essential question “is it morally good to criminalize homosexual behavior?”

Hart provides us with an excellent starting point – a division between positive morality and critical morality. Positive morality can generally be said to be the popular morality, or the morality present in society as a matter of fact. Critical morality is the morality we use in the consideration of legislation and other such matters. There is an important reason to keep these two conceptually separate, since to just uphold the positive morality would simply be allowing the majority to impose their believes on a minority. Hence whether it is moral to apply critical morality is a central concern to the discussion, and not the imposition of positive morality, which should justly be ruled out as being unjust.

A Preliminary Concern

To answer this like a good law student, I am suggesting first a preliminary test of whether homosexual behavior can qualify as morally bad. This is drawn from Ronald Dworkin’s response to Lord Devlin, where in essence, Dworkin writes that for something to qualify as being properly morally objectable, it has to be distinguished from mere prejudice or personal aversion. Dworkin seems to draw this from the very common sense requirement that to have your objections and views enforced by law, there better be a good reason for them. Even those who are anti-homosexual behavior will accept this, since while many cannot properly articulate their point of view, none would simply say that they didn’t need any reason at all.

Hence the question really is not about the quantity of opinion, but rather the quality. The various internet petition sites like keep377a.com all boast impressive numbers, but this is besides the point if these petitions are nothing more that expressions of personal aversion or prejudice. A truly moral position would be one that even a homosexual would accept, even though he might not agree with it. The Bible or other religious texts might be a good example, although then there is a further requirement of consistency with these sources, which usually cannot be met (for example, few Catholics would adhere to some of the Bible’s more bizarre practices like avoiding crayfish – why then enforce homosexuality and not that?).

Unfortunately for us, Dwokin notes that the role of interpreting whether the concerns of the community really amount to a moral objection lies with the legislator. Dworkin’s legislator must assess the consensus of his community through what public debate has occurred as well as based on his or her intuitive understanding of his own community. It is stressed that naturally the legislator must assess this from a position of detachment, since a parliamentary minister is expected to represent his community and not push his own agenda in parliament.

The Singapore experience shows an alarming disregard for this basic requirement. First, beyond some vague appeal to a “silent majority,” the only evidence that can suggest a strong moral objection to homosexual behavior are internet petition sites. Even ignoring the problems as to the credibility of these internet sources, there is greater evidence to suggest that Singapore as a whole does not oppose homosexuality. Considering the secular nature of our society (the two religions that expressly forbid homosexuality, Islam and Christianity only account for less than 30% according to a source on Wikipedia [I know, take the information as it is – information from Wiki]), as well as the stoically pragmatic and apathetic outlook on life, it can be argued convincingly that most Singaporeans simply care more the ERP gantries that are sprouting up everywhere. It is on this basis that a very sensible call for a Select Committee investigation to be conducted was made by Sylvia Lim – a call unfortunately not taken up by Parliament.

Second, even if accepting that there is some kind of general objection to homosexuality, many of these objections would fail miserably while applying Dworkin’s requirements. A quick skim through either www.keep377a.com or www.support377.com shows precisely the kind of personal aversion and mere prejudice, mixed together with some of the more exotic and paranoid claims of a gay conspiracy to seemingly take over the island. None of these, especially the infamous “like drinking through a straw” comment amounts to nothing more than empty rhetoric. Without being able to discern between true moral objections and mere personal aversion, there is real threat of the tyranny of the majority imposing its beliefs on a minority. Needless to say, democracy does not equate mob rule.

The Possible Answers

Evidently there are already problems with ascertaining if there’s a real moral objection to homosexuality. However for the purposes of discussion, let’s assume that the keep 377a lobby has already dealt with this problem. From this point then, there are generally three options to be chosen by the government. It can criminalize, de-criminalize or strike out some interesting middle path which was what the government did in the end. Each has its own justificatory grounds, and none are without some degree of criticism.

Criminalization

The criminalization approach was famously supported by Lord Devlin, back in the time when Britain was considering the decriminalization of homosexual behavior. In essence, his argument boils down to the assertion that societies are a collection of ideas and moral values, and hence it is open to society to criminalize acts that may threaten this social identity. Such survivalist grounds, Devlin argues, are precisely why homosexual acts should not be allowed as it will threaten society as a whole, even though the actual act itself is between private individuals and nor harm occurs. To be fair to Devlin, he actually argues from a very tolerant point of view, in that while he is for criminalization, he proposes that maximum tolerance should be the solution, rather than intervention by the law.

Even conceptually this stand is difficult to defend. First it is difficult to imagine that an entire society will disintegrate should homosexual sex be decriminalized. As Hart pointed out, society is not a seamless web, in that having one part altered will radically change everything else. For example, when our local parliament passed the Abortion Bill, it was going in the face of some fairly stiff positive morality based oppositions. Many cited the disintegration of society’s morality as a result of legalized abortions. History provides us with a more sensible answer – Singapore as a society did not perish with the enactment of the abortion bill, but we’ve lived on till today. A more plausible explanation of this societal preservation theory is that societies do have a core morality about them, but these matters are so inherently deep seated, that they are hardly brought up to parliament. Issues that are brought up to parliament form a sort of moral periphery, which can change and evolve as time passes.

Second, even if it is conceptually accepted that a society can be destroyed because homosexual acts are decriminalized, there is little evidence that Singapore is one such society. In parliament there was much claims about Singapore being a family based society which was incompatible with homosexual lifestyles. The question this asks then is what is so essential to the family unit that homosexuality will necessarily destroy? Certainly homosexuals cannot have families, but this by no means prevents regular people from having families. On a societal level, it is even questionable if family values play such a big part in Singapore. It can be argued that career success, material wealth or simply financial stability substantially affects what it means to be Singaporean, rather than homosexuality.

De-Criminalization

The de-criminalization theory largely adheres to Mill’s crime principal, although Hart does add some minor qualifications to it. The basic idea is that law is morally justified to govern human conduct so long as it seeks to prevent harm. There has been much critique of this general premise, especially the notion that “no man is an island,” and hence any harm done to an individual will still have repercussions on a level that will affect society. Hart attempts to placate such criticism by reading in paternalism into Mill’s original argument. The laissez faire philosophy of the 19^th century was gradually giving way to more paternalistic forces and so the harm principal could be logically extended to self harm as well. Hence, Hart is able to use the harm principal to absorb principals such as “there is no consent to murder” as well as laws against suicide.

Applying even new harm principal, there seems to be little reason why homosexual behavior should be criminalized. However, in accepting paternalism as part of the principal, Hart perhaps sets up a difficult precedent to deal with. For if harm can be extended to the individual, then a state may extend harm further to a moral harm against to society, or even, if homosexuality is assumed to be a harmful activity, criminalize homosexual behavior solely on basis on protecting the individual from diseases related to homosexuality.

Such counter arguments may seem convincing, but I think they would stretch the harm principal to unrecognizable lengths. For Mills, the creation of the harm principal was to draw a clear line that a state would never be justified to cross. Hart’s small qualification does concede some ground but still generally provides a guideline against state intervention. If the harm principal were to be stretched to “moral harm” or conceivably any harm, then the principal would be useless since the state could intervene at any level. In fact there is some physical harm that the state can probably never fully intervene against even with paternalism – smoking is one such example.

The Middle Road

Finnis strikes a middle ground between these two camps by suggesting that the law only criminalize public manifestations of sexual behavior. He lumps homosexuality together with prostitution and claims that the law should ban both in so far as they appear publicly, however he stops at criminalizing them for acts done in private. The reasoning here ties back to his idea of basic common goods. Here there is a clash between the common goods of communal good, and self-sufficiency. Hence, the law is limited by its purpose – that being to create a morally conducive environment to do good. Since private homosexual acts are not within the scope of this general purpose, it is really none of the law’s business.

This middle ground is attractive, since it does project an enlightened usage of popular morality in the law. However it runs into consistency problems, as Macedo rightly points out in his response to Finnis. There are significant problems in the classification of homosexuality with prostitution, contraceptive sex and masturbation. Finnis considers all of them as being unable to conceive a child, and hence cannot properly realize the common good of marriage. The problem is that he allows for sterile couples as being able to realize the common good of marriage – a division that is difficult to accept. However, the practical results are still favorable to homosexuals. Finnis allows them to lead their lifestyles without fear of legal intervention, whatever his conceptual basis for allow this maybe. It is noted that looking past the conceptual inconsistencies, Finnis’ solution does provide a moderate middle ground that realistically most jurisdictions will adopt.

Our Solution (if it can be called one)

So locally the tale plays out as such: 377a will be retained, but not actively enforced. While the government’s intentions to “please everyone” can certainly be appreciated, it is submitted that this can only be a temporary measure. Not only does this make a farce of our legal system, in that some laws are more “applied” than others, it also really pleases no one. The conservative lobby knows that gay activities are still being done and so if their moral objections are truly valid they will continue to be unhappy, while the gay lobby can fairly consider 377a to be a gun to be fired at the discretion of the government. Hence it is hoped like the Wolfenden report in the UK, this series of 377a related debates is but the stepping stone for eventual legalization of homosexual behavior. For as it is, the state of 377a merely presents a hollow victory for those with moral objections – and if this lobby is accepting such a result, then perhaps we should go back and examine if they truly are morally objecting to homosexuality, or just demanding a fictitious assertion that what they conceive to be moral is right. This is an entirely different can of worms, and should quite rightly be argued outside of law.

P.s. I have been somewhat unfavorable to the notion that there exists a credible moral objection to homosexuality in Singapore. While certainly in our libertine circles in NUS it might seem inconceivable that people are still so backward in believing that gay love should be punished by law, there remains (as was mentioned) a large majority of heartlanders and the like who we have no idea what they are thinking. Furthermore, even in the scholastic circle that we frequent, we do see people who hold strongly to the belief that gay sex is wrong. Professor Thio Li-Ann is a powerful example. For all the hate directed towards her, an equal amount of respect is due simply for standing up for something she believes in – in barren, apathetic Singapore no less. However, if only her conviction was backed with sound reason.

Studying shouldn’t be an embarassing affair

As the exams troop round the corner, the strange and fascinating sub-species of student crawls out into the lime light. The closetius muggereus, the defender of discreet studying, and delusional boaster of “really doing no studying at all”. Really now, you’re in school, and a university at that to study. Naturally some may study more than others, but the base fact is that if you come to a school expecting not to study at all, or with the precognition that studying, like a 377a offense, is something that should be done in the closet – then perhaps you shouldn’t be in school at all.

22 years and going strong

Like most of things in life, words fail you when needed the most. It is all too easy for the author the dexterously reach for a phrase to finish a novel, or for the legal aspirant to repeat ad nauseum about pleasing the court. Yet, when a birthday cake is shoved under you and a kooky bunch of friends are singing you the most embarrassing rendition of the Birthday Song right in the middle of the school canteen, finding the right words is like grasping at sand. So now having the luxury of some reflection time, I’ll attempt to put into words the maelstrom of gratitude I was feeling. But before you start thinking I’ve gotten sloshy and sentimental, you all only get this luxury for one day a year. We’re back to the status quo of snide remarks and snarky rejoinders come tomorrow.

For all the people who used to be part of forum communities, this sort of post should be familiar. For those who think it’s silly, then clearly you’re too young to remember how important virtual cookies used to be to people. And most of all here’s a salute to a dying tradition of showing how much your friends mean to you.

The Bat Crew: Caleb, Hao-gen and Arif, my fellow bat cavers. For the record, you all suck at guitar hero and rock band, despite being some of the most musically talent people in school. Other than that, you guys help make mugging in that stupid room bearable. Some day when we graduate, we should all hijack a golf buggy, and instead of walking up to collect our degrees, we’ll drive up onto stage, knock over the dean and grab our papers. Then we’ll escape through the wall to the tune of a wailing guitar solo from Flight of the Concords.

The Dysfunctional Duo: Simon and Jin, in so far as bitchiness, indecision and mood swings are concerned, each of you could overpower a room full of women. Someday I’m sure you two will corporate long enough to go on another holiday, but till then by all means keep on squabbling. At least it keeps Jin from cracking his absolutely dead pan jokes. P.s. Simon I’ll be sure not to tell people about your court apparel that you bought from Giordano.

The Blonde Sisters: Cheryl and Sam, you two make me feel old. It is fitting that Cheryl is obsessed with “the toes song” because bubbly is probably the best adjective that anyone would use on the two of you. At any rate, don’t take offense with the blonde label. Because if being blonde means to enjoy what life serves you no matter how gloomy it may seem, than I think lots of people could use a blonde hair do. So stay blonde, ditzy and crazy, because in all honesty, the legal profession has plenty of serious, anally retentive and assholic douche bags already.

The Tai Tai: I can already imagine you rolling your eyes at this point Andrea. I’ve not much to say here, because I think the 8 months (or so) I’ve known you is best remembered as the long string of asides and bitching sessions, peppered with some shockingly deep insights into life and the universe. How do you encapsulate all that into a mere paragraph? Better luck keeping starlight in a vial. So instead, I’m simply leaving the invitation open to keep our little act running, because life’s play is too short to take seriously.

The Rabble: Okay I know there’s a lot more of you still at school, and because I’ve got criminal law to read, I can’t possibly cover you all. Very briefly: Yuhui you’ll always be robo-cop, Mel Chin, Christine Huang and all my LawR classmates, thanks for putting up with me for 2 semesters, and thanks for all the help. Don’t think this message will ever come to your attention, but what the heck, writing it here is like shouting obscenities out into the open sea – you never know who might hear. Especially you Bingham. Paul, Reezuan (sorry about your name dude) and Mayers (again sorry about name), thanks for showing that old dudes (okay not so old) can still be cool, crazy and sexy (this one goes only to mayers). Richard on the other hand, someone tell me his birthday so I can buy new pants for him. Shermaine you should take less drugs in the morning – someday you’re going to be so hyper you’ll explode. Or even… Burst – A shout out to Kelvin Ong. Amy Tan, or Vest Girl, keep on Vesting. Christine Sim, I really meant to say you looked fierce in that power suit, not cute. And finally to all the people I didn’t remember, thanks for a reasonable year. I’m not mentioning you because most probably I don’t remember your name, OR I’ve got comments about you that really should not be made public, unless you want to know about my various lesbian fantasies. Involving cups.

Team GaX: Old woman Germs, Anne, and the rest of the crew, thanks for having me. I know that running a game magazine in Singapore is an up hill task, and a thankless one, so props for making it this far. I know our audience is pathetically juvenile (of the kind that age doesn’t cure), but what the heck, all a writer can do is keep on writing and hope that eventually someone takes notice. I am tempted at this point to take pot shots at a certain parent company, but I think that lampooning official newspapers would be a little incriminating, especially seeing as how your names are here too. But just for kicks, the only use I’ve found for my SPH publications is to kill cockroaches – so hey they aren’t THAT useless. Props also to all the other people I’ve met through GaX. Chris and Diana from EA, Ian from Microsoft, the crazy people down at Mikoishi, and Ksatria – again don’t think you’ll ever read this, but thank you for putting up with emoboy. I swear I didn’t come up with such a gay name, and the name is entirely the fault of the next duo of people I’m going to talk about.

Homecourt Homies: Ismet, Chung Howe, dudes. In a very non-homoerotic way, I’ve got to confess that the two of you really bumped me along into real adulthood. The government likes to talk all the usual crap about the army making boys into men, but it think it’s impossible to make that leap unless you get out into the world, get your hands dirty and work. Before GaX I was still stuck in that annoying insular JC fishbowl of mind, with my grades shoved up my ass. GaX showed me lots more about life – that it ain’t easy, and that even so, that’s no reason not to have fun. (for the record, I’m still claiming daddy rights). Ismet thanks for giving me the job of a lifetime (okay I joke, the job actually kinda stinks, but you know what I mean). I think we did some pretty decent articles together, and in particular I’m really quite proud of the Lone Wolf feature. Best of luck clubbing seals in Norway, and rest assured I plan to make good my promise to visit some day. Chung Howe, thanks for making me OCD on thunderhorse. Really that song still rings in my head every now and then. Other than that, thanks for showing me that marketing and sales isn’t all wine and dining – believe me when I say that Chris misses you romancing him all the time. You can tell in his eyes.

The Eunice: Quite frankly I think it would be absurd if I could say something here that you don’t already know. It’s been an interesting year since that silly first date, and between all the WoWing, Guitar Heroing, Rock Banding, Alcohol and Japanese Food Whoring, we actually found the time to fall in love. I started this essay saying how words fail me, and for you, even here I stumble. And so I turn to a geeks best friend, and simply say what I’m trying to say in numbers.

1 <3 |_|

P.s. For those wondering, yes this is my personal blog and something I’m hoping to keep more updated soon. Knowing how lazy I am though, don’t get your hopes up.