Of Sex and the Law
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Of Sex and the Law In page 48 of the Review section of 16th April edition of the Straits Times' Sunday Times, in "Isn't it time we abolished our archaic sexless?", Geoffrey Pereira suggests that certain "archaic sex laws" should be abolished. This is in response to a case of the civil court wherein a man was tried and convicted on count of having unnatural sex, or sex against the order of nature. Going through some internet statistics, Pereira discovers that unnatural sexual practices are a common feature in society. From there and from the suggestion that the involved civil servants could be doing "more important and worthwhile work", he wants to conclude the doing away of these laws. For any reader two points are immediately suspect. Firstly one wonders if there might not be a logical gap in arguing from a fact to a norm, that is, in saying that just because many do something hence it could be right or permissible. Secondly, suspending his perhaps rash presupposition that these laws are outdated, there is certainly a non causa a causa at work: just because the case took civil servants away from other "more important" work does not quite warrant the dismissal of these laws - might one not just as well say that it rather warrants the doing away of these acts? Precisely the laws are set in place, if not for deterrent purposes, then surely for retributive purposes. These laws are not the cause of the waste of resources. These acts are. If the doing of these acts entails the spending of resources, the dismissal of justice is not an option. In a better age wherein justice is valued over utilitarian expediency, perhaps it would not be so obvious that the usage of the relevant resources is a waste. But I have not come to quibble over these, but to stall the perhaps already popular idea that the notion of nature or order is something which should have no place in the law. Unfortunately I do not have the experiential qualification to talk about the benefits of oral or anal sex, and hence I do concede a certain disadvantage there. Nevertheless, there seems possible, even on a purely reasonable plane, to stop-check and to wonder if we do indeed want to go along with the very catching trend of legal positivism. The premises at work on Pereira's column, I submit, seems very strongly to betray this line of thought. The notion of nature or physis is not, as perhaps us moderns might imagine, something which is a concoction of pre-scientific superstition. In fact, the notion of nature was a great achievement of the Greeks who contrasted it with what is convention, or law. The idea was to find something which did not sway according to human imaginings but instead was fixed and eternal, a standard which ran across cultures and time. One recalls the Platonic ideos existing in the godly world of Forms to get an idea of the exaltation of this concept. Even Aristotle who dismissed the reification of his teacher considered in the Physics that form was something divine. The culmination, I think, is in Aquinas, whose almost self-contradictory notion of natural law brought law under the obedience of this normative concept of nature, and begged for the alignment of law with the moral norms, which for him were the ways of preserving and promoting human integrity, perfection and happiness, that last of which neither co-extensively nor co-intensively coincides with merely sensitive pleasure. To revert to the divorce between law and nature, seems to me, a regression into the primitive. The way to progress, is to the persist in the opposite direction. While I agree that times have changed, it must be admitted that some things have not quite. Even in genetic manipulations, the scientists rejoice not from that fact that they have created a rat with a human ear, but peraccidens, in the possibilities that this successful manipulation has for future uses. Uses for what? Rats with two ears? I doubt it. Behind the possible permutations of future applications, I do hope, lurks the aim of the perfection of the world and its inhabitants not according to arbitrary fancy given to an absolute democratic vote but according to some norm which directs our existence according to a carefully examined criteria of happiness and improvement. I think I am not too far off the mark, since I take it as uncontroversial that the rat with the human ear has been "sacrificed"; a sacrifice, in itself, is not something desirable. Likewise in matters of sexuality, what is in accord or against the order of nature is not something which is determined by a majority of "Boo!"s or"Horray!"s. The human anthropology in matters of emotions and sexuality are so complex that it would require a band wagon fool to be willing to submit oneself to the ruling of "what is common". The point is, what is in accord or against nature is not a function merely of the approval and disapproval of the masses. It requires careful study, because happiness of individuals are at stake. Now, the law has as its intrinsic goal the protection against the violation of the dignity of persons. I take this to be acceptable without much stirring. In its abolishments and promulgations of laws, the legal institutions must work closely with parties which have an educated interest in the areas of true human goods and happiness and not merely such as gather the descriptive data of present behavior. I admit that this is not an easy issue that may be settled within a column, nor do I pretend even to be complete. But if I have just brought forward the serious and perhaps worrying implications of the premises at work in Pereira's comment, so to stir up some critical reflection, that would be sufficient for my purposes. Jude Chua Soo Meng |
'Boos' or 'hoorays' do not decide what is right in sex
He refers to a case where a man was tried and convicted for having unnatural sex with a woman. Going through some Internet statistics, the writer discovers that unnatural sexual practices are a common feature in society. From there, he goes on to suggest that the judge, the prosecutor, the police and the doctors involved with the case could all have been doing "more important and worthwhile work" and concludes that it is better to do away with such laws. Firstly, one wonders if there might not be a logical gap in arguing from a fact to a norm, that is, in saying that just because many do something, it could be right or permissible. Secondly, just because the case took civil servants away from other "more important" work does not quite warrant the dismissal of these laws -- one might just as well say that it rather warrants the doing away of these acts. Laws are set in place, if not for deterrent purposes, then, surely, for retribution. These laws are not the cause of the waste of resources. Such acts are. If doing away with these acts entails the spending of resources, the dismissal of justice is not an option. In a better age, where justice is valued over utilitarian expediency, use of the relevant resources would not be construed as a waste. It is not my intention to quibble over such things, but to oppose the perhaps popular belief that the notion of nature or order is something which should have no place in the law.
To revert to a divorce between law and nature seems to me a regression into the primitive. The way to progress is to persist in the opposite direction. While I agree that times have changed, it must be admitted that somethings have not quite changed. Even in genetic manipulations, scientists rejoice not over the fact that they have created a rat with a human ear, but over the possibility that this successful manipulation may have future uses. Behind the possible permutations of future applications lurk the aim to bring about perfection in the world and to its inhabitants -- not according to the arbitrary fancy of an absolute democratic vote but through some norm which directs our existence according to a carefully examined criteria of happiness and improvement.
What is in accord or against the order of nature is not something that is determined by a majority of "boos" or "hoorays". In humans, matters of emotion and sexuality are so complex that it would be foolish to submit oneself to the ruling of "what is common". What is in accord or against nature require careful study because the happiness and well-being of individuals is at stake. Now, the law has as its intrinsic goal the protection of individuals from any violation of their dignity. I take this to be accepted without much stirring. When considering the abolishment or promulgation of laws, the legal institutions must work closely with parties which have an educated interest in the areas of true human good and happiness. I admit that this is not an easy issue that may be settled within a letter. But if I have brought up the serious and perhaps worrying implications of the premises at work in the writer's conclusions, so as to stir up some critical reflection, that would be enough. Jude Chua Soo Meng |