Friday, November 16, 2007

An Informal Reply to Nevin: Are Social Norms Always Right?

I thought it might be interesting to post a reply to Nevin’s latest comment to my last post.

nevin wrote, “You have misread my comment.”

No I did not.

nevin wrote, “Polygamy is illegal under the woman's charter and only legal under the Administration of the Muslim Law Act (for muslim men). This point was already stated in my original comment and is not a mistake of law. My facts are correct.”

No, your facts are incorrect according to the context of my post. My post concluded, “If they insist that the law must not interfere with personal sexual choices and activities, then the logical conclusion from such premises would be the repeal of laws criminalizing incest and polygamy.” So, in order for you gays to be consistent with your “gay logic” - logic is not used as a complimentary term here - you should not ONLY lobby for the repeal of s377a, but also for all other laws in Singapore that criminalize incest and polygamy for ALL Singaporeans.

nevin wrote, “I am not, contrary to your misrepresentation, arguing for polygamy.”

I never said that ... contrary to your misrepresentation. What I did say was, “In order for you gays to be consistent with your “gay logic” - logic is not used as a complimentary term here - you should not ONLY lobby for the repeal of s377a, but also for all other laws in Singapore that criminalize incest and polygamy for ALL Singaporeans.” I also said in my previous comment, “Delightfully, “gay logic” should allow Singaporeans to practice incest and polygamy based upon premises 1 and 2.” If you did not read my post carefully, do it now.

nevin wrote, “Although your point that polygamy was once commonplace but is now not acceptable is an implicit concession that social norms are not immutable.”

Once again, this is faulty reasoning on your part. What I wrote was, “Finally, polygamous marriages were common all over Asia. Monogamy marriages is a western concept, introduced in Singapore after 1965 and in China by the communist in l953.”

Is this another one of your red herrings? Social norms did change, and it is different in different cultures. Some tribes in Asia and Africa practiced headhunting. I’m glad that changed. Some cultures practiced incest. I’m glad that changed. But what has “social norms [being not] immutable” got to do with your “gay logic?” Again, in order for you gays to be consistent with your “gay logic” - logic is not used as a complimentary term here - you should not ONLY lobby for the repeal of s377a, but also for all other laws in Singapore that criminalize incest and polygamy for ALL Singaporeans.

Furthermore, what has “social norms” to do with what is right and wrong i.e. morality and ethics?

If you argue that “morals are mores,” that is, moral commands are considered community demands, this view would imply a cultural relativity of morality.

As I had written elsewhere before, this view of morality commits the “is-ought” fallacy (Hume). Just because something is the practice does not mean it ought to be. It is the case that people are cruel at times; they hate and kill. This in no way means that ought to be the case. Likewise, even if the entire community in a certain village has a preference for same-sex rectal intercourse, this does not mean that ought to be the case.

Secondly, if each community is right according to their moral view, then there is no way to solve conflicts between communities and nations. Whatever each one believes is right – even if it means the annihilation of each other – is right.

Thirdly, we must ultimately seek that which is right (i.e. the truth, or the universal moral law, or the natural law, or that which is right in itself). Murder cannot be both right and wrong. A tribe might consider the hunting of humans as fun, and the right thing to do. That is the moral “right” in that tribe. Singapore thinks that hunting humans for their heads is murder, which is wrong. If you claim that one group’s moral stand is right, and the other wrong, what moral standards are you subjecting yourself to?

nevin wrote, “Lastly, the comment about "gay logic" is itself illogical. Logic either makes sense or it does not, and the central issue here is that the state should be slow to intervene in private, consensual acts.”

I’m glad you realize this. The central issue here is that the state should be SLOW to intervene in private, consensual acts. But this does not mean that the state should NOT intervene in private, consensual acts.

So you do agree with me that the state SHOULD intervene in private, consensual acts like same-sex sodomy? Oh yes, the state should do it slowly e.g. moral police creeping up slowly behind you, and subsequently bringing you slowly up to the criminal court, and speaking to you slowly in court, and of course, bringing you slowly to jail. Is that slow enough for you?

The central issue here is that the state should be slow to intervene in private, consensual acts, but the state should nevertheless intervene in private, consensual acts like incest, homosexual sodomy and polygamy.

Finally, the term “gay logic” is not illogical. It is an oxymoron. This is because gay arguments are illogical. I’m glad you get that.

1 comment:

nevin said...

Your argument previously was, if i may summarize, that since the argument for repeal was based upon private consensual acts that did not cause harm, then homosexuals should likewise argue for the repeal of incest and polygamy laws for consistency. Here you are putting up a straw man by stretching the argument to an absurd conclusion. One could similarly argue that the flip side of this argument is that ALL acts which cause harm should be prohibited. This would justify making alcohol, cigarettes or fast food illegal on the basis that they can cause harm.

It is possible to stretch a sound position by stretching it to absurd lengths. That does not however, undermine the value of the principle. And the general principle at criminal law that a person's liberty should not be restricted unless there is harm, or what John Stuart Mills would term the 'harm principle', remains a sound foundation of criminal law.

If one were to use the morality argument against homosexuality, one could similarly argue that there is a need to support the criminalization of heterosexual sodomy (the old 377), abortion or adultery on the basis of morality. Again, these would be untenable in a modern age.

When i wrote of 'social norms' being not immutable, perhaps i was imprecise in my terminology. I would rephrase this as morality being not immutable. People's conception of what is wrong or right is not necessarily fixed.

This would probably come across as a completely relativist position and you bring up the issue that "if each community is right according to their moral view, then there is no way to solve conflicts between communities and nations." And herein lies the role of the law to regulate the differing viewpoints in society.

Insofar as we can both agree that the law should be slow to interfere in private acts of its citizens (in your case, you emphasize the fact that the law can sometimes intervene), the question here is what is the threshold that is set whereby the law can and should intrude into the private sphere. And here i submit that the opposition stems largely from disgust or unease at other people's private acts. Or it might stem from conservatively held convictions that such an act is unnatural. But beyond this psychological unease, there is no compelling reason to criminalize it. And here one must separate criminalization from promoting homosexuality. Just as society frowns on adultery or to a lesser extent smoking, it does not seek to make smokers or adulterers criminals.

And from this relativistic starting point, this does not mean the law cannot proscribe anything. Here, John Rawls' conception of an "overlapping consensus" model can be applied. At risk of oversimplifying the model, the basic idea is that even among people with differences, there is an overlapping area of consensus. Murder would be an example of something which falls within this overlapping consensus and thus provide whereas 377A might not.

You also add that "we must ultimately seek that which is right (i.e. the truth, or the universal moral law, or the natural law, or that which is right in itself). Murder cannot be both right and wrong.". Taking a more relativist position, i would not agree that there is always a correct or right position. And for the example of when murder can be both right and wrong, i would refer you to the case of Re A (children) (conjoined twins: surgical separation). [2000] 4 All England Reports 985. I'm sure a google search will quickly acquaint you with the facts of the case, but to quickly summarise, this involved a pair of conjoined twins, and it was necessary to separate the twins so that the stronger twin "Jodie" would survive. Separation would however, kill the weaker twin. A case where murder could be both right and wrong.

The one point i do agree with you is the “is-ought” fallacy. As you say it so eloquently: "Just because something is the practice does not mean it ought to be. It is the case that people are cruel at times; they hate and kill. This in no way means that ought to be the case."

But cruelty need not be physical. There is also the insidious blade of discrimination, of bias and of intolerance. Just because we criminalize people on the basis of their sexuality in no way means that ought to be the case.