tag:blogger.com,1999:blog-27989891.post2807759987825038930..comments2023-06-10T06:31:14.117-07:00Comments on viva Vox Dei: An Informal Reply to Nevin: Are Social Norms Always Right?vincit omnia veritashttp://www.blogger.com/profile/07129530005436270157noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-27989891.post-72754510973411051112007-11-18T06:39:00.000-08:002007-11-18T06:39:00.000-08:00Your argument previously was, if i may summarize, ...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. <BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>You also add that <I>"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."</I>. 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. <BR/><BR/>The one point i do agree with you is the “is-ought” fallacy. As you say it so eloquently: <I>"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."</I><BR/><BR/>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.Anonymousnoreply@blogger.com