Why should Section 377A exist if homosexuality isn’t harming anyone?

The ‘harm principle’ is an argument rising in popularity. As the exercise of free choice has value in itself, laws which restrict one’s autonomy are only justified if they are there to prevent harm to others1/2. Under this rule, a person cannot be restricted from something even if, in the opinion of others, it would be better for him to do so. Some therefore claim that Section 377A is unjustified because sodomy is a private act between two consensual adults and does not violate the harm principle. This argument stems largely from a philosophy centered on individualism and postmodernism.

The ‘harm principle’ is seductive, but has several major critiques. Two of them are:

Firstly, ‘harm’ is difficult to define. It means a variety of things to different people. Given how the actions of one inevitably affect another, it is not meaningful to spell out what constitutes harm for each person. This is because the private acts of private parties can have public consequences.3 Hence, society has the right to protect its essential institutions (family, education)4 via the protection of its moral ecology or public morality. Private acts of pornography, for instance, create harm to character, misrepresent sex, and demean women. Although “private”, the accumulation of these private decisions to use pornography erodes important shared public understandings of sexuality and sexual morality, both of which are vital to the health of the institutions of marriage and family life in any culture.

Secondly, the ‘harm principle’ is radically incongruent with Singaporean law. In fact, the law as it is today is heavily concerned with morality, as reflected in the law’s stance over bigamy5, adultery6, incest7, animal cruelty8 or in the ‘corruption’ of children. Even as a matter of academia, the legal philosophy that law and morality should be strictly divided (legal positivism9) has largely given way to a recognition that law and morality are deeply intertwined10. Hence, to ask whether law should interfere with private acts is to ask the wrong question. The real issue is if homosexuality is moral, immoral or amoral.

 

Endnotes
1. H.L.A. Hart, The Concept of Law
2. J.S. Mill, On Liberty
3. Robert P. George, The Concept of Public Morality
4. Lord Devlin, The Enforcement of Morals
5. Section 6, Women’s Charter (Cap. 353)
6. Section 95(3)(a), Women’s Charter (Cap. 353)
7. Section 376G, Penal Code (Cap. 224)
8. Animals and Birds Act (Cap. 7)
9. H.L.A. Hart, The Concept of Law
10. Ronald Dworkin, Law’s Empire