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3 J. Comp. L. 285 (2008)
Pragmatism, Morals Legislation and the Criminalization of Homosexual Acts in Singapore

handle is hein.journals/jrnatila3 and id is 644 raw text is: SEOW HON TAN

Pragmatism, Morals Legislation and
the Criminalization of Homosexual
Acts in Singapore
SEOW HON TAN *
The relationship between law and morals is a perennial concern of legal theory. Within
this area, the specific question of whether laws may be founded upon or justified by
controversial moral norms in a pluralist society which allows freedom of conscience and
in which different views of the good life flourish is a recurrent theme in debates in legal
and political theory. In criminal law, the enforcement of moral norms through laws is a
matter of concern as it translates into a restriction of individual liberty. As perhaps most
would agree today, legal coercion calls for justification as the freedom of individuals
violating the laws are impinged upon when they are incarcerated, and the freedom of
those not violating the laws may also be affected if they refrain from acts they would
otherwise have done.' In particular, laws that prohibit private homosexual practices have,
in various jurisdictions, been the subject of intense scrutiny for restricting private intimate
consensual conduct viewed as integral to the fulfillment of homosexuals.2 Alternatively,3 it
has also been argued that such practices should be tolerated when no other person seems
to be harmed by such conduct. In recent decades, such laws around the world have been
held unconstitutional or repealed, paving the way, in some of these jurisdictions, for laws
which facilitate same-sex marriages or civil partnerships.
In Singapore, such legislation was the subject of a wider criminal law review
undertaken over the last few years, which culminated in passionate debates in Singapore's
legislature when it was proposed at the end of the review that a criminal law provision,
SJD, LL.M. (Harvard), LL.B. (NUS); Advocate and Solicitor (Singapore); Assistant Professor, Faculty of Law,
National University of Singapore. This paper was written after the author presented the subject at the Festival of
Legal Theory Independent Workshop, Legal Theory in the Global South, at the University of Edinburgh in June
2008. I thank the participants of the workshop for their comments during the workshop, and an anonymous
referee of this journal for helpful suggestions.
1 Hart, HLA (1963) Law, Liberty and Morality Stanford University Press at 21-22 ['Hart, Law'].
2 See, e.g., Lawrence v Texas 539 U.S. 558 at 573 and 577 (2003).
The preceding argument is arguably stronger in being based on the good of individual fulfillment, whereas
some would make the less strong argument that even if we do not see homosexual relations as good, we
should respect the choices of individuals. See, e.g., 'Moral Argument and Liberal Toleration: Abortion and
Homosexuality' in Sandel, M (2005) Public Philosophy: Essays on Morality in Politics Harvard University Press
at c. 21.

JCL 3:2    285

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