For all you readers out there, may the following be an abject lesson in two things. The first is not to make yourself sound more learned just by quoting some distinguished law professors. The second is not to commit the even graver sin of misrepresenting them, as the following writer does with H L A Hart.

The letter by Istyana Putri Ibrahim [1] is indented, and I will make my comments in between them.

Mr Choo Zheng Xi ('Justify why gay acts should remain criminal'; ST, May 1) asserts that while individual liberties can be constrained to prevent harm to society, Section 377 should be abolished on the grounds that gay acts harm no one. Following this line of argument, laws requiring motorcyclists to wear helmets and motorists, seat belts, would have to be repealed because no harm is caused to others when they fail to do so.

This is an idioitic and irrelevant example. Why? Because the "harm principle" that Mill espouses is a utilitarian argument. Based on the utilitarian argument, the seeming contradiction in the vehicle safety law argument vanishes; we can say that the social cost of not requiring everyone to wear a seatbelt causes enormous harm to society, because if this law is not passed and enforced, unnecessary numbers of productive people will die or be injured on the roads, leading to direct harm to society in terms of productivity. In any event, apart from the assumption that it is better to make as many people in society as healthy and injury-free as possible for as long as possible, no moral issue is involved here.

But what if there is the danger of myopic choice, that is, an individual might rashly behave without regard to his "real" well-being? In the vehicle safety example, an individual might think at that moment that it is not worth wearing seatbelts because the risk is small, or because he thinks it will not really help, and so on. This choice is myopic since a) it really will help and b) the cost involved in terms of personal liberty is small. No reasonable person would think that, on balance, there is a strong argument for not wearing seatbelts -- assuming that people don't like being killed or maimed, which is a reasonable assumption.

Do the same principles apply to gay sex? The answer is no. Gay people presumably do not risk harming or maiming their consenting partners or themselves during sex, just as straight people presumably do not harm each other during oral or anal sex. It is irrational to regard the latter as lawful (and presumably harmless), while saying that the former is harmful. Indeed the argument that gay sex creates a greater risk of infections and sexually transmitted disease per se, when placed in context against Singapore’s impending legalisation of sodomy between men and women, sounds completely ridiculous. If the harm caused by the latter activity is apparently so negligible that it does not warrant a law against it, it is utterly irrational not extend this to homosexuals as well. This is unless one is seriously contending that men have dirty anuses and women do not, which is so laughable not even a medical student needs to show how silly this is.

Secondly, the cost in terms of personal liberty in terms of choice of sexual partners for consenting adults is enormous, and far, far greater than seatbelt and motorcycle helmet laws. So while we can say that protecting people from themselves by requiring them to wear crash helmets, even if "paternalistic", is justified because it does involve really serious consequences (i.e. life vs serious injury or death), the same does not apply to gay sex.

In any event, I have outlined here other reasons why gay people don't cause harm to society.

Therefore it is not always the case that clear harm to other people has to be proven before a particular law is enacted. H.L.A. Hart, the 20th-century philosopher, pointed out that the harm principle is justified only if most people make their choices in the ideal fashion -- 'with adequate reflection or appreciation of the consequences'.

Here I have to go completely ballistic because this is not what Hart actually argued. In Law Liberty and Morality, Hart did say that there may be grounds justifying the legal coercion of the individual other than the prevention of harm to others. But on the narrower issue relevant to the enforcement of morality he agrees with Mill.

Hart argues that critics of Mill who argue for the enforcement of morality argue based on "unwarranted assumptions as to matters of fact, or on certain evaluations whose plausibility, due in large measure to ambiguity or vagueness or inaccuracy of statement, dwindles ( even if it does not altogether vanish) when exposed to critical scrutiny". The onus is on people who argue for the enforcement of morality through the law to show that there are moral principles supporting that.

In the real world, many external forces exert their influence on individuals. Professor Tan Seow Hon once argued in an article regarding the issue of unnatural sex that 'when longstanding laws rooted in morality are repealed, the effect on members of society who are hitherto neutral, and on impressionable youths, may be disastrous'.

One Young Republic [2] reader was not ready to give a generous reading to Professor Tan's argument, saying that Professor Tan is clearly implying that an end to criminalisation would encourage more people to indulge in homosexual acts. Perhaps she is saying this, so I will deal with this reading first. In the first place, the ending of criminalisation in every place which did end them certainly did not lead to some sort of epidemic of buggery. Buggery has never become near fashionable or trendy anywhere. All that has happened is that gay people have become more visible in public life everywhere they were decriminalised -- perhaps there is some sort of confusion here between an increase in visibility with an increase in the occurrence of gay sex.

In the second place, why would impressionable youths be any more or less susceptible to becoming homosexual as a result of decriminalisation? In the real world, being attracted sexually to anyone has very, very little to do with the opinions exerted by other people or society. It is an extreme distortion of reality to suggest that the following thought pattern runs through the typical teenager's head:

"Oh, a couple of my friends are gay. Hm, so that must be cool. So hm, I must be gay as well!"

Furthermore, without going into the nature/nuture debate about homosexuality, everyday life experience should inform us that being attracted to men, women, (or both) is not fickle at all.

In any case, I was prepared to treat Professor Tan's argument more generously. I shall call it the "Lord Devlin argument", since a similar one was made by Lord Devlin (who used to be a judge on the highest court in the UK) 50 years ago. Here's how it runs: A shared morality is essential to a society's existence, and that any deviation from the enforcement of morality is going to cause the breakdown of society. Obviously some sort of shared morality is essential to the existence of any society. The Lord Devlin argument however, supports the proposition that a society is identical to its morality as it is at any given moment in its history, and that a change in its morality is tantamount to the destruction of that said society.

The counter argument raised by the moralists would be that opposition to gay sex is such a huge and pivotal bit of that shared morality of society that the non-enforcement of laws against gay sex will cause the destruction and dissolution of Singapore society. (Destruction and dissolution here by the way has a very specific, common sense meaning -- it refers to a society which falls into some sort of civil war conditions, in the sense that Iraq has fallen into civil war as of late). Either that or it would cause some slippery slope effect, which would amount to the same thing. This argument is absurd.

Firstly, as Hart himself writes in Law, Liberty and Morals, Lord Devlin in his argument did not produce any evidence,

"to show that deviation from accepted sexual morality, even by adults in private is something which, like treason, threatens the existence of society. No reputable historian has maintained this thesis, and there is indeed much evidence against it. As a proposition of fact it is entitled to no more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes."

In addition, the standards of what society considers as moral or immoral changes over time. 90 years ago, it was morally acceptable to hang signs saying "no dogs or Chinese allowed" in some areas of the world -- that obviously became completely unacceptable. Otherwise, you will really be arguing that "well, we've made all the necessary changes to our social morality already and there is no need or room for improvement", because that is an utterly absurd statement to make in any society which even debates issues of morality.

So armageddon is not going to come to Singapore if homosexuality is decriminalised, as it has failed to come in every other country where it already has. Singapore has survived the introduction of (then) R movies in the late 80s. Surely it will survive the decriminalisation of gay sex, which is already little enforced.

Here we will hear another objection from homophobes: "But we’re not saying that Singapore is going to be burned to the ground a la Sodom and Gommorrah, all we’re saying is that decriminalisation will lead us straight down the path of seeing all these gay parades and queens prancing around our street wanting to get married, because that will encourage all these gay lobbies to force us to accept these things! Don’t we as a really conservative society deserve not to be exposed to such awful things, which themselves constitute the destruction and dissolution of Singapore society?"

Two points really emerge from this counter argument: the first is that there is some sort of aggressive gay lobby which is just waiting in the wings to arm-twist Singapore society into having their views as the dominant ones in society the moment gay sex is decriminalised, and the second asserts that the majority of society have a right to criminalise immorality which it finds abhorrent, even if there is no proof that this will lead to social breakdown. I shall deal with the latter argument first before going on to the former, in the next section.

Decriminalising homosexuality is as much a moral stance as criminalising it. By decriminalising homosexuality, we are necessarily sending out a signal of approval because we have engaged one moral world view -- that autonomy is an absolute value -- when this view is in contention among different world views. Section 377 [3] should be abolished only if there are rational reasons for choosing that world view over another.

Having failed to understand the nature of the "harm principle", misrepresenting HLA Hart, and making absurd assertions that either (i) people can be easily persuaded to be gay and/or (ii) that decriminalisation will lead to the end of society, the writer's last defence is that we should not be privileging one distinctly liberal moral stance over another less liberal moral stance.

Yes, we would be making a moral stance in decriminalising homosexuality. Yes, by decriminalising homosexuality, we are necessarily sending out a signal of approval. But a signal of approval of what?

Let's start with a brief reminder of the implications of criminalising an activity. Criminalisation typically results in the loss of liberty of movement via prison or some form of detention, a deprivation of one's assets, and in paradigm examples of crimes (theft, murder, rape) a form of social sanction or condemnation or outcasting. Why on earth would we need to do such evil things to anyone? Society must have very, very good reasons for doing so.

Mill's harm/utility principle, and/or the principle that nobody's individual dignity mental and physical should be violated without consent, provide explanations for criminalisation of many sorts of activities. But if not preventing harm to others or the protection of individual dignity, what sort of arguments can be marshalled for the protection of the enforcement of morality via the law? We go back to Hart's thoughts on the matter. He concludes in Law, Liberty and Morality that principles underlying the enforcement of morality for its own sake (assuming that this does not necessarily preserve society) include:

• mere outward conformity to moral rules induced simply by fear;
   
• the gratification of feelings of hatred for the wrongdoer or his "retributory" punishment, even where there has been no victim to be avenged or to call for justice;
   
• the infliction of punishment as a symbol or expression of moral condemnation
   
• the mere insulation from change of any social morality however repressive or barbarous

This does not prove that the enforcement of immorality is not worth the price paying in terms of the loss of freedom and autonomy to the individuals affected, and Hart explicitly says this. But these considerations should give pause to anyone who asserts that a majority have a right to criminalise an activity where there is no harm done to anyone, just because such a majority thinks it is immoral.

There is indeed yet another consideration. Even if the vast majority of the people in Singapore think that gay sex is highly immoral even if harmless, that gives the majority no right to suppress a minority's immorality if that leads to the minority being unable to be on an equal status in terms of their political and social standing. I have argued this previously, and I have shown how the criminalisation of gay sex has made the political rights of homosexuals in Singapore very vulnerable here.

Which brings us to the former point that I said I would deal with -- the argument that there is some sort of aggressive gay lobby out there in Singapore which, emboldened by decriminalisation, will force Singapore to accept its point of view all of the time. In the first place, nobody who has put forth such an argument -- not even Asst. Professor Yvonne Lee, has shown that this aggressive gay lobby does exist in Singapore. In the second place, even if there are homosexuals in Singapore who believe very strongly that no one should be allowed to say anti-gay remarks (not even priests or imams), or that gays should have the right to marry, and so on, so what? These same people and groups would inevitably have to engage in a dialogue about where our social acceptance standards should lie with every other community, group or individual in Singapore. This debate about social acceptance is a dynamic process, and as I have already argued above, is far from over. It is foolhardy to assert that one group of views is going to gain precedence even before such a debate has even begun. Whatever choices a society makes with respect to its views on homosexuality, would have been made after such a process of extensive debate. The prevention of such a debate just in order to preserve the status quo then looks distinctly like a method to impose one world view over another -- all the more immoral because at any given point in time in history, significant numbers of people will never agree that the status quo is the best of all (moral) worlds.

Taking all of these factors together, a reasonable person might conclude that no matter how immoral or disgusting one feels about gay sex, or how much one wants to make a moral stance against it, the immorality involved in criminalising such behaviour outweighs the former two considerations. After all, was it not Jesus Christ himself who said to the Pharisees about to stone the adulteress "Let he who has not himself sinned cast the first stone" ?