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JURISPRUDENCE 2014/2015

LL4104/LL5104/LL6104
RESEARCH ESSAY

Practical Reason and the Justification of Rights: Illiberal Liberalism, Same-sex
Marriage and Natural Law

VICTOR DAVID LAU DEK KAI
A0096607W

WORD COUNT:
6,480 words (including footnotes but excluding references)

LEGAL CITATION GUIDE:
Canadian Guide to Uniform Legal Citation, 7th ed (Toronto: Carswell, 2010)

INTRODUCTION
Questions on law and morality have plagued jurisdictions for time immemorial, with proponents
on either side pressing for a ‘thick’ or ‘thin’ conception of law depending on their personal faithbased convictions or possible ‘empirical’ analysis. The corollary of that has meant that
fundamental human rights have also seen its fair share of ‘thick’ and ‘thin’ conceptions. While
different doctrines might often arrive at the same conclusion, they have a vast range of differing
and sometimes conflicting justifications. Among competing philosophies, philosophical
liberalism has sought to end constitutional history as we know it. Most contemporary
jurisprudence on rights justification have centred around notions of individual liberties and
freedom leading to inalienable rights, a secular conception of the good in order to justify a
multicultural society and lastly, a call to neutrality. Unfortunately, as with the passing of time
liberalism’s ideological basis has been abused by self-interested communities and has become
the subject of politics’ manipulation. Unlike other forms of liberalism such as Classical
Liberalism, Illiberal Liberalism was born out of such abuse. 1 This strand of liberalism is
ironically, intolerant to specific communities and is a threat to freedom and liberty.
While liberalism in the form of language and culture has only been met with a growing
interest in Singapore recently, for many decades after its rise in the Anglo-American West, it has
met with heavy criticism from the conservative front. One contentious issue which has served as
a ground for ideological battle is same-sex marriage (“SSM”). I am not interested in agendamotivated ideological battles today. Instead, in helping to frame the dialogue on SSM I suggest a
search for a plausible middle ground and a call back to reason. Through this paper I explore and
apply a Natural law variant of practical reason to serve as a methodology for rights justification.
I reconsider practical reason as a central methodology to guide lawmakers (and perhaps the
judiciary) in light of constitutional challenges and shifting societal norms. This could serve as a
principled alternative which accounts for a greater variety of interests with regard to rights
justification. This is opposed to liberal arguments which are overly-weighted in favour of the
individual.

1

See Philip Hamburger, “Illiberal Liberalism: Liberal Theology, Anti-Catholicism & Church Property”, (2002) 12 J.
Contemp. Legal Issues 693 where Hamburger illustrates the illiberal potential of liberalism as a threat to freedom
when taken to intolerant extremes by a powerful majority and liberal ideals.

2

Hopefully. the goal sought to be achieved is the ‘lifting’ of the veil of neutrality on the liberal camp and the acknowledgement of possible abuses on both sides when their conceptions of the common good lead to overbearing ideologies which are ultimately intolerant and hypocritical. for it has been dealt with by more capable hands elsewhere. I chose to focus on only shortfalls of an Illiberal Liberal form of rights justification in order to cogently put forth a Natural Law variant. in Part III. This enquiry will recognize the common conservative and liberal arguments on both sides of the SSM camp. my essay will apply the two keys I have identified in practical reasoning to dealing with the issue of whether SSM is justifiable as an inherent right. Other references include many of which were highlighted by her as well. in particular. In particular. 3 . I will not give a substantive account of liberal theories here. Classical Liberalism) due to the scope and word limit of my essay.In my essay.2 Instead. Part I of my essay will focus on a critique of Illiberal Liberalism. the first being the removal of flawed emotional. A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing. Any mistakes are of my own making. I will focus on the potential abuses and problems faced with embracing such an extreme variant of liberal ideology made popular in the Anglo-American jurisdictions. the concept of practical reason. 2 See Thio Li-Ann. Much credit goes to my dear friends Alex Goh and Samuel Koh for commenting on my initial drafts. I am indebted to Dr Thio for her insights on liberal thought and natural law. It is nevertheless conceded that I am unable to provide a more balanced critique with alternative liberal arguments which might be compatible with practical reason (e. the reader will be able to recognize the call to reason. The essay will not conclude on the justifiability of the issue but will provide a possible framework in addressing it. It will deal with common conceptual misunderstandings and provide reasons for selecting Natural Law first as a complete theory of law and second as a useful methodology. 2012) at 44-51 [Thio]. two keys will be established in this exercise of practical reasoning.g. Part II of my essay will then focus on restating Natural Law principles. Lastly. after this essay. ideological and self-motivated premises from moral arguments and the second being the balanced justification of competing interests among different groups co-existing under a singular jurisdiction which validates their respective rights. I have chosen to only offer a critique of liberal arguments precisely because we have already seen the consequences of overtly religious and conservative ideologies through time. Much of the content on liberalism is credited to her book.

4 Robert H. which prioritizes individual autonomy” and “the ‘neutral’ state (which facilitates) individual autonomy (and) does not espouse a shared conception of the good. and care for them more.firstthings.6 I view it important that we unpackage certain aspects of liberal arguments. moral and metaphysical assumptions is the prerequisite for freedom and peace” since thicker assumptions will lead to conflict and thwart human cooperation. Longmans. with individuals free to pursue their own conception of the good life”.127. “Hard Truths about the Culture War”. Taken to an extreme. Bank. This maxim holds true throughout the greatest part of the business of life. John Stuart. the three problems of an extreme form of liberalism are: A. what unites all forms of liberalism is the assumption that “thinness of anthropological.I.” – John Stuart Mill3 Liberalism propounds the twin values of Liberty as well as Equality. than the government does. ‘Thinness’ – a lack of Philosophical and Normative Substance These in turn lead to three abuses of liberal ideology (with no particular bearing on the order and cause of the above three problems): 3 Mill. While there are more than several divergences. A Misuse of ‘Rights’ – a form of Rights ‘Fetishism’ C. supra note 2 at para 01.11. 5 Thio. This is for the purposes of identifying fundamental arguments of SSM proponents who justify themselves via a liberal framework. A CRITIQUE OF ILLIBERAL LIBERALISM “People understand their own business and their own interests better. Liberty can become a form of “radical individualism” and Equality can become “radical egalitarianism”. Principles of Political Economy with some of their Applications to Social Philosophy (London. 1995).5 According to Thio. Green and Co. or can be expected to do. online: First Things http://www. The ‘Veil’ of Neutrality B. liberal societies rest on the two main pillars of a “meta-liberal value of normative liberalism. Accordingly. however dogmatic.com/article/1995/06/001-hard-truths-about-the-culture-war retrieved 4th October 2014 [Bank]. 1909) at para V11. (Article) (United States: Institute on Religion and Public Life.128. 6 Thio.4 These two conceptions have spawned Illiberal Liberalism which advances the core beliefs of a society’s liberal elite. supra note 2 at para 01. and wherever it is true we ought to condemn every kind of government intervention that conflicts with it. 4 .

However. “What’s Wrong with Liberalism” (2008) Modern Age 7 at 13 [Legutko]. supra note 4. When turned into an encompassing ideology. 2003).a) Interest-motivated views on society propagated under the guise of Equality (Egalitarianism) and Liberty (Free-will) b) The Intolerance of Tolerance. 11 Graham Walker. liberalism is in fact not neutral with respect to a conception of the good life. The ‘Veil’ of Neutrality Illiberal Liberalism grew out of Classical Liberalism and expanded its central ideals of Liberty & Equality while maintaining a ‘neutral’ position where it claimed to respect all multicultural ideologies. and for government to be truly neutral (in liberal terms) on the moral worth of 7 Bank. 10 The ‘neutrality’ it proposes leads to the privatization of religious and social values which effectively operates as the substantive commitment which then displaces rather than tolerates its predecessors. neutral strand” which emphasized “autonomy. “The Idea of Non-liberal Constitutionalism” in Ian Shapiro and Will Kymlicka (eds) Ethnicity and Group Rights (New York: University Press. 8 In turn. Ryszard Legutko.11 In Michael Sandel’s famous “Justice” lectures. 1997) 154 at 170. he tackles the issue of SSM and ultimately concludes that the Massachusetts Supreme Judicial Court ruling in Goodridge v Department of Public Health12 fails in its attempt to remain morally neutral.9 The problem of maintaining neutrality is that modern liberal discourse is often not a language of freedom but a language of necessity. See Legutko.2d 941 (Mass. the marginalization of “Illiberal” views for being NonLiberal c) A downward spiral of Moral Relativism I seek now to address the three problems of Illiberal Liberalism. since certain social structures and traditions are effectively censored. 8 5 . Sandel recognized that the court adopted a “liberal. 10 Ibid. ibid at 10. A. he states that if the court were to truly uphold individual autonomy to the extent of which liberals conceive it to be.E. 9 Ibid. 7 The truth of the matter is that this ‘neutral’ position is untenable since multiculturalism always leads to a highly regulated environment which conceals homogeneity and is hard to maintain. 12 798 N. choice. consent”. what results is that non-liberal social structures and traditions are merely tolerated but constantly monitored for relapses of ‘hate speech’ and non-liberal content.

” 15 This goes a long way in de-establishing the liberal arguments often used by SSM proponents and justifies the lifting of the ‘veil’ of neutrality. its purpose or point. When procedural liberalism is abused under such a guise it displaces certain conceptions of fundamental facets of society. (Video) (United States: Harvard University. This is usually avoided by Liberals in order to avoid the need to pursue convincing arguments for their cause. “Abolish Marriage”. 1303 at 1307. The debate over same sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honour and recognition that. 16 Instead of rightly qualifying certain “individual freedoms” as “previously unrecognized”.youtube. Marxism. 14 Michael Kinsley.com/watch?v=EzD9P9sj4M&list=PL66DFF275B46BEF40&index=12> retrieved 4th October 2014.14 In essence. self-motivated minorities might employ this rhetoric under the ‘veil of neutrality’ to enforce their arguments as self13 Michael Sandel. the policy adopted should not accord recognition to certain associations and unions rather than others.L. in our society. 6 . state sanctioned marriage confers. like marriage. is to argue about the virtues it properly honours and rewards.13 This argument brought to the extreme would result in the scenario envisaged by Michael Kinsley. 15 Michael Sandel.voluntary intimate relationships. B. And to argue about the purpose of a social institution like marriage. who suggests privatizing marriage altogether and removing it from state definitions and sanctions. This usually goes hand-in-hand from the starting point of ‘neutrality’ as mentioned above. “Justice: What’s the Right Thing to Do?” (2011) 91 B. This dangerously influences the less perceptive majorities amongst our societies. Communism and even Fascism all purport and believe that they have a conception of the good and what society should be. online: Youtube < https://www. The liberty of radical individualism and the refusal to admit limits to the gratification of self can lead to ‘rights’ language being employed as a “pernicious rhetoric” which “asserts a right without giving reasons”. To put it plainly. A Misuse of “Rights” – Rights Fetishism The second problem with an over-extended liberal view is the misuse of the word ‘rights’ without adequate justification and reasoned argument. Rev. Sandel argues that the case for SSM cannot “be made on non-judgmental grounds” and “depends on a certain conception of the telos of marriage. Justice: What’s the Right Thing to Do? Episode 12:”‘DEBATING SAME-SEX MARRIAGE”. (3 July 2003) at A23. 16 Bank. they do so openly and seek to convince the recipient of an imposition of such a view.U. 2009). So the underlying moral question cannot be avoided. supra note 4. while various philosophies such as Democracy. Washington Post.

evident and universal. In the US.S. How Cultures around the World make Decisions. New York: Routledge. supra note 7. is the absolute pinnacle…we want to be able to choose everything that matters. for example: “In terms of fetishizing the idea of choice. the distinct problem of Anglo-American style liberalism is the assumption that it was seen as the end point of political theory evolution. 1991) 19 Ibid.17 Valerie Kerruish notices how legal points of views and conceptions of right are not characterized as oppressive but objective and true while points of view which are characterized as political or religious are often treated differently.19 Legutko latches onto this idea with regard to liberal ideologists who enact moral changes in society through legalistic formal arguments instead of “substantive” claims. in the demand to choose and create exactly the kind of individual life. 18 7 . and self. This is perhaps why SSM proponents seem more than capable of providing logical and sound arguments since political and popular discourse is often shaped by a liberal backdrop. you believe in. professor of social theory and social change at Swarthmore College and author of The Paradox of Choice… The American desire for choice has manifested in numerous ways: politically. as well as the things that don’t. Valerie Kerruish. as coined by her. online: Ideas. in a demand for a voice in governance…and spiritually. balancing of prevailing rights and recourse to reasoned argument. 17 Ibid. The idea of freechoice is embedded in American society.20 Understood more colloquially.ted.com/2014/10/21/how-cultures-around-the-world-make-decisions/ retrieved 6th November 2014. Coupled with the ‘neutral’ position that liberal governments appear to take it is concocted potentially to a dangerous ‘rights’ language which purports to be correct and true without prior justification. The greatest danger is when ‘rights’ become a ‘trump’ without adequate justification and a weighing of other justifiable interests.Ted http://ideas.Choi. the overriding perception is that anything you do out of allegiance to tradition and social expectation is inauthentic and not you.” – Barry Schwartz.18 What subsequently happens is that legal discourse turns “rights” into an absolute value and creates “rights fetishism” in society. Jurisprudence as Ideology (London. the U. (Article) (TED Conferences LLC. Because the real you is the choices you make.”21 The obsession with choice stems from the over-extended notion of Liberty. 20 Legutko. 21 Amy S. This happens when rights acquire qualities and properties which it lacks outside the social relations and practices which constitute the fetish. 21 Oct 2014).

23 I submit that this ‘thinness’ offers governments an ‘easy way out’ as they do not need to confront important moral and social issues and to provide explicit preference to certain values over others. in fact constitutions often provide “a certain ordering of the inhabitants of the city-state”. Lack of conviction in a certain direction may lead to an eventual descent into moral relativism as the binding effect is weak and relative to stronger voices which might emerge to dominate (which is nothing wrong in fact unless such collective decisions are reasoned and arise from strong coherent arguments without the use of rhetoric).1. an active judiciary might over-extend its powers to become mini legislatures and change pertinent areas of law without recourse to a democratic parliamentary system which is more accountable to society’s views. observe the political and societal reaction to the Goodridge case. It is once again contended that liberal frameworks do provide a conception of the common good and how society should be run but most times certain conclusions which it arrives at flow through the wrong channels. governments fail to provide guidance and to utilize the law as a ‘teacher’. For example. the chances that ‘thinness’ and ‘neutrality’ become a guise to posit certain hidden agendas. Politics III. ‘Thinness’ – a lack of Philosophical and Normative Substance Liberalism at its core is reductive in nature and fails to provide useful guidance and ‘right answers’ to societal problems. which is to provide a framework “within which…a model of public order spacious enough to secure maximum freedom for everyone” is reached. as mentioned earlier such a view seems practically impossible since the role of government is necessarily to prioritize certain rights and goods over others to maintain a sustainable environment. Aristotle. the anthropological ‘thinness’ of liberal governance is unattractive.1274b32-41. While it may be argued that this is precisely its intention. supra note 7. 23 8 .24 22 Legutko. On the assumption that law’s role is not to merely facilitate desires and individual goals but to provide a coherent common good for society. 24 For example. What is most unattractive is not simply the lack of substance but as argued above. Powerful liberals and minorities which seek to usurp the prevailing social order may then use liberal arguments to propound their self-motivated agendas without detection.22 Legal ordering is necessary. The corollary of this is that.C.

25 I have taken pains to discuss the concept of Liberalism because they involve certain means by which SSM proponents argue from without alluding to them. NATURAL LAW THEORY AS A METHODOLOGY “The law is reason unaffected by desire. 28 In the Enlightenment era. L. my predecessor and senior holds clear insights in: Dominic Chan.1287a32. Enlightenment naturalism and moral reductionists. The type of arguments engineered by ‘rights’ activists all follow a particular pattern allowable in liberal discourse particularly due to the three factors I have listed above. (1918) 32 Harv.26 This will all be relevant as we develop the Natural Law principle of practical reason as a methodology for rights justification. Even Finnis. 26 I allude to the Christian and Catholic faiths because they provide the ideological basis for the perennial stream of Natural Law. Politics III. and American Constitutionalism http://www. Levin & Darren M. 27 Aristotle.I have sought to show the dangers of unfettered liberalism when it is not identified as an actual ideology with a particular conception of good in society but taken wholly as universal and true. Lastly and more recently.29 This decline was no doubt aided by confusion over NLT and Enlightenment naturalism and other efforts to “secularize” NLT. Natural Rights. the emergence of legal positivism seems to have completely displaced NLT’s place in legal thought today. these philosophical changes were marked by misreadings and misunderstandings on Thomas Aquinas.org/critics/enlightenmentcritics (retrieved 10 October 2014).Rev at 93-137. Rev. Staloof. “Natural Law”. (Article) (The Witherspoon Institute) Online: Natural Law. “What is Right and what is a Right?: The Claim to Same-Sex Marriage. 29 Adam M. NLT was overtaken by humanists. Enlightenment Critics of Natural Law. the Politicization of Rights and the Morality of Law” (2004) 24 Sing L. 9 . 28 Oliver Wendell Holmes. Whether by being the cause or effect.nlnrac. 41. II. Liberals dismiss NLT arguments as thinly veiled religious fundamentalism while skeptics like Holmes dismiss Natural Law theorists as having a “naïve state of mind” for simply accepting broad and general principles without discernment. conservatives also have certain starting points in their arguments but these are already obvious with the passage of time revealing the origins of Christian and Catholic fundamentalism.” – Aristotle27 Natural Law Theory (“NLT”) has often been misunderstood and poorly explained. 25 For a detailed breakdown of how such arguments are formulated.

It provides a holistic picture for law as a framework and to carry out its function of legal ordering. while slightly undone by writers who tend to write in the abstract. normative and not partial unlike positivist or critical legal theories.who is greatly credited for his work in restating NLT. Not only is Natural Law a comprehensive theory of law. In this part. NLT is Comprehensive as a Legal Doctrine NLT is a complete legal theory which is substantive. practical reason. which may be overly technical and unrelatable to the layman. clear and even flexible. with many of them focusing on the lack of justification for his ‘self-evident’ basic goods. (2) Reasoned and (3) Capable of Offering a Balanced Approach to Rights Justification. It may appeal more satisfyingly than purely legal arguments.31 The focus will be on the central tenet of practical reason by which I shall later formulate and apply as methodology. 31 However. Rev. “John Finnis’s Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods”. one which NLT provides and one which we shall now look at. has his fair share of critics. its fundamental tenet. I believe that NLT treads objective middle ground and contrary to popular belief. offers a balanced approach to rights justification. I do not agree with Finnis’s notion of self-evident basic goods which he defines as amoral. The rights justification methodology of liberal doctrines as shown in Part I is too prone to ideological abuse and incapable of provided a balanced argument which displays clearly to concerned citizens a reasoning about means and ends. I allude to classical NLT consistent with a Thomistic account. Wallin. By propounding a Natural Law account as a viable legal philosophy I seek to provide an alternative to liberal ideology for rights justification. can be practical. I contend that Natural Law is a viable philosophy because it is (1) Comprehensive as a Legal Doctrine. Practical reason. A. is not necessarily an endorsement for a theocratic state.30 A restatement of NLT is in order. 59. (2012) 35 Campbell L. 10 . It “propose(s) to identify principles of right action – moral principles” 30 Alex E. as this precludes or fails to explain moral reasoning in earlier Thomistic accounts. Practical reason also goes further than typical judicial arguments in addressing important moral and philosophical questions which may be useful to Parliament when we interact with the extra-legal sphere.

J. 1957) at 10.”32 NLT can provide the basis and justification for positive law. 1987) at 281-87. this starting point can explain why natural lawyers and SSM proponents have such divergent views. 33 Robert P. Pol’y. The latter proposition nevertheless.”33 NLT need not be theocratic and can be applied to secular societies. “Natural Law”]. 35 George. supra note 33 at 182. a group. (2008) 31:1 Harv. Boyle. Aquinas’s definition of law requires that in political communities.. To digress slightly. & Pub. Nuclear Deterrence. & Germain Grisez. “Natural Law”. equivalently. 36 Ibid. translate natural law principles of justice and political morality into the rules of positive law. Morality and Realism (Oxford: Clarendon Press. George. Grotius saw the inherent ability and nature of man to judge for himself what is harmful or agreeable 34. The basis and fundamental grounds of NLT are important for arriving at such a conclusion. Joseph M. 37 Ibid.L. At its core. JR. 188 [George. justified authorities derive the law they make (positive law) from the natural law or. the natural lawyer views the individual as an intrinsic (not instrumental) human being capable of rationality and one who should be accorded “dignity and basic human rights” 35 If we acknowledge this. SSM proponents incorporating liberal arguments from individual autonomy may prefer viewing their bodies as a ‘means’ to their desires for pleasure while natural lawyers view their bodies as an intrinsic ‘ends’ in themselves to be used for 32 John Finnis. does not preclude the former. “Natural Law”. we will also acknowledge these “human capacities for reason and freedom”.36 These grounds would remain in place regardless of whether or not there is indeed a God who formulates “the moral order whose tenets we discern in inquiry regarding natural law and natural rights”. “In this sense. broader view. 34 Hugo Grotius. Prolegomena to the Law of War and Peace (Liberal Arts Press.to justify how “one should choose and act in ways that are compatible with a will towards integral human fulfillment. 11 . individual or institution has to translate principles of natural law into positive law and reinforce these principles with legal sanctions in order to fulfill the moral functions of law.37 The theistic view would be that human beings are made in the likeness of their Maker and are thus as capable of objective rational behaviour. It is from this starting point which we are able to formulate norms based on practical reason.

objective moral norms are results of conclusive and non-instrumental reasons for action. but is also in conformity with all moral norms. George. Natural Law and Natural Rights (Oxford: University Press. Practical Reason Finnis defines NLT as “the set of principles of practical reasonableness in ordering human life and human community”39. Robert P. 1997) at 23.44The ideal is an Aristotelian one of “law (as) reason unaffected by desire”. 40 George.rational purposes. unlike Humean non-cognitivism which is slave to passion and desire. “Natural Law”. See George.40 Human choice and action is thus directed by practical reason towards what is “humanly fulfilling and away from what is contrary to human well-being”. 12 . “Defence” ibid at 126. 38 See generally. the dichotomy is clearly seen by the more substantive vision of the individual in the latter and the reductive account of the former. 42 Robert P. It requires reasoning about “both the ‘right’ and the ‘good’. 41 Ibid. especially without the benefit of perfect hindsight? Grisez. 42 Rationally grounded arguments founded on sub-rational motives may not be reasonable in an intrinsic sense. supra note 27. 1999) at 18 [George.45 In short. In Defence of Natural Law (Oxford: Clarendon Press. 43 Not all reasons for actions are moral norms – The key point is that a choice is fully reasonable when it is not only for a reason. B. The concept of practical reason is thus central in NLT for the legal ordering of rights to protect and prioritize different interests of separate communities and persons living under a state’s legal umbrella. and the two are connected” by the content of “human good” which “shapes the moral norms applied in judgments about right (and wrong) choices and actions”. Del: ISI Books.43 An “intelligent grasp of the intelligible point of performing the action” is required. 38 While both liberal frameworks and natural law frameworks are selfempowering and begin from the individual in many ways. 39 Finnis. Basic human goods which form a conception of the common good of society must be free from “emotion or ideology” in order for it to be justifiable. supra note 33 at 185. rationally motivated actions is that people perform them for non-instrumental reasons. Finnis and Boyle will argue that what distinguishes true. 45 Aristotle. George. Practical reasoning of the NLT kind is different from deontological and utilitarian approaches. how do we arrive at an objective practical reason. 44 Ibid at 24. “Defence”]. “‘Same-Sex Marriage’ and ‘Moral Neutrality’” in Clash of Orthodoxies: Law Religion & Morality in Crisis (Wilmington.41 If reasonable persons do disagree. 2001).

with its unbalanced focus on the autonomy of the individual.Yet the ideal is not always met. if we believe and identify with the aforementioned substantive (and not reductive) role of the rational individual with “natural human capacities for deliberation. judgment and choice” the “natural law can be known to us”.50 For example. NLT is interested in the well-being of human persons intrinsically and this “includes relationships with others…in formal and informal communities” while disallowing him or her to be “treated as a mere means to others’ ends”. but we are imperfectly rational”. Yet. Natural Law Theory capable of offering Balanced Approach to Rights Justification NLT strikes the middle ground between radical individualism and collectivism. Ibid. ideological or self-interested premises which cannot be successfully defended as rational. I believe that for ideologies propounding their agenda and conception of ‘rights’. because for “human beings. 48 George. both of which do not do justice to the rational human person who is of intrinsic value as alluded to above. the right to freedom of speech might be justifiable if it does not unduly affect interests of public peace and the limiting of public nuisance. supra note 33 at 181. 49 Ibid at 173. C. 48 I submit that objectivity is possible and the first key in my methodology would be to constantly identify flawed emotional. Thus. Balancing of justifiable 46 George.46 Or we “have self-interested motives for” disrespecting certain rights or minorities. 47 13 . “Individualism overlooks the intrinsic value of human sociability and tends to view human beings atomistically” while “collectivism compromises the dignity of human beings by tending to instrumentalize and subordinate their well-being to the interests of larger social units”.49 NLT would posit that human rights would be present “if there are principles of practical reason directing us (usually the majority) to act or abstain from acting in certain ways out of respect for the wellbeing and the dignity of persons (usually the minority) whose legitimate interests may be affected”.) Instead.47 The debates for/against the objectiveness of practical reason are endless. supra note 33 at 180. (This immediately goes some way in refuting liberalistic arguments. placing (or finding) all the cards on the table is vital before we accept their respective ideas of the common good which they have identified through what they consider are non-instrumental reasons for pursuing basic goods. 50 Ibid at 174. in developing a NLT methodology or framework. “Natural Law”. “Natural Law”. we are rational animals.

practical reasoning inspects not only what right to whom it shall be given to. should free/subsidized education be prioritized over free/subsidized healthcare and to what degree) 3) How such a right can be implemented (by the state via subsidies gained through additional taxation or by private organizations which transfer the cost to individuals) This serves to silence critics who posit a simplistic moralist approach to NLT. Practical reasoning goes beyond the application of moral principles and utilizes “technical and prudential judgments” in varying circumstances to arrive at complex justifications of ‘rights’. “Natural Law” supra note 33 at 175 14 . III.51 This balancing act is inherent in the way practical reasoning plays out in rights justification. police for a right to public peace) 2) What is the priority of such a right vis-à-vis pre-existing rights or justifiable interests already proclaimed (e. translated by J. but also: 1) Who provides or enforces the right (to/against whom) and why they should do so (e. NLT views the nature of ‘rights’ and law in a complex. 52 It is submitted that the second key to my methodology would be balancing justifiable and competing interests while viewing the role of practical reason not simply as one declaring rights but also according and prioritizing them functionally. It is wise to first state the caveat that I do not believe such a rational exercise is not already in our legislative and 51 This is reminiscent of Alexy’s balancing approach: see generally Robert Alexy. Fundamentals of Ethics (Oxford: Clarendon Press 1983) 80-108. consequentialist or aggregative accounts of moral reasoning which would not satisfy the ‘rational person’ starting point. APPLYING PRACTICAL REASON AS A METHODOLOGY We now begin on our inquiry bearing in mind the two keys mentioned above. Rivers (Oxford: Oxford University Press. education or healthcare provider for the provision of free education or healthcare to a specified group of persons. also see John Finnis.g. In order for rights to be justified. 2002).g. multi-dimensional fashion. 52 George. A Theory of Constitutional Rights.interests would be a prevalent theme instead of utilitarian.

Consider second the possible counter-argument by a conservative who seeks to uphold the notion of marriage as defined by male-female union.judicial systems. discrimination is justifiable for the purposes of upholding societal morality. I list down possible starting points of both camps which should be scrutinized through practical reason before the reasons they provide in 15 . 1) Marriage is traditionally and rightfully defined as a natural male-female union. Consider first a possible argument for SSM posited through a liberal framework: 1) All men are created equally and should thus be accorded equal rights. Instead. rather than descending into an argument at cross-purposes. there is a realm of ‘private morality’ which should be out of reach from the law’s hands. 2) Homosexuality is an unnatural act and thus SSM should not be ordained by the state. what I believe is that a Natural Law perspective enables us to understand the philosophical base for whatever rationality we subscribe to. 3) SSM laws (or by extension laws criminalizing homosexual sex) are discriminatory since they preclude autonomous individuals equal in the eyes of the law from consecrating their love and affection. Identifying possible Flawed Emotional. Below in Table 1. Ideological and Self-motivated Premises There are plenty of premises which are motivated by instrumental reasons inconsistent with practical reason as posited above. 3) The rights SSM proponents seek are illusory because equality before the law does not preclude the passing of laws which are discriminatory as long as it is based on an intelligible differentia. the law has had boundaries on such acts for rightful reasons and should not be changed. 4) Homosexuals thus have a right to marriage and the right to extend the state-sanctioned definition of marriage. 2) The law has no place in imposing their moral views on citizens – they should remain neutral on issues of morality. It is proposed that the two keys of my methodology which are in line with principles of practical reasoning would be much more helpful in elucidating the debate. A.

religious view in society. When in the process of rights justification. Identifying and eventually removing possible false premises will help legislators identify the possible instrumental reasons which provide non-conclusive reasons for action. Table 1 Liberal (SSM) Philosophical Starting Point Individual Conservative (Anti-SSM) Autonomy Freedom Ideological Preferences Human and Religious and Traditional.the justification of their various conceptions of the common good (their philosophies and ideologies) can pass considerable muster as conclusive reasons for action. the people or the sovereign as elected by the people has to make a free (rational) choice “between two or more open practical possibilities which no factor by the choosing itself settles which possibility is 16 . Communitarian Values Choice/Desire ultimate goal Individuality as Human Choice/Desire tempered by religious beliefs and will as Human Person (body) seen as an sacrosanct and use of body not intrinsic end and never as means to be tempered by moralistic to pleasure or carnal desires notions Emotional Biases ‘Minority’ Subjugation and Disgust towards homosexual ‘Discrimination’ for prolonged behaviour and moral ‘inertia’ periods of history Interest-motivated Premises Expanding liberal agenda to a Expanding theocratic state to a (leading Scenarios) to Extreme greater scope to incorporate level of formal authority and the more alternative lifestyles into over-inclusion of a dominant society. in turn helping them then identify non-instrumental reasons providing conclusive reasons for actions which then shape moral norms.

54 People can ‘choose’ in a stricter and more rational sense compared to animals which choose (in the lower sense) as according to their desires. “There can be no free choice where the only possible motives for action are sub-rational. “Defence” supra note 42 at 117. G. 1980) 57 See Joseph Raz. people are able to make free choices not determined by desire. the legislature has to pay attention to instrumental reasons which provide false conclusive reasons. the choice between the two is rationally underdetermined and it would not be wrong to pursue either direction. in deciding the moral norms which reflect the laws of our society. 1986). Commensurability. supra note 42 at 117-118. habits. the legislature. Grisez and O. 55 Ibid at 116. ‘Weakness of Will. has to decide if a liberal protagonist is irrationally misguided in pressing for an inflated empowered version of individuality seeking to eliminate hierarchy completely or if a religious conservative is too keen and irrational on re-establishing a societal hierarchy of dogmatic nature due to feelings of familiarity and nostalgia.) Essays on Aristotle’s Ethics (Berkeley: University of California Press. this would be akin to a failure and weakness of the will. in evaluating countervailing arguments. 17 . 58 George. “A choice in favour of either possibility would be consistent with those principles of reasonableness in practical affairs that we usually refer to as moral norms.”58 Thus. Tollefsen. Secondly. “Defence”. yet there was no conclusive reason for making it one way rather than the other. emotional inertia”. they may have a conclusive reason to perform an act and yet an emotional motive (strong aversion) to performing it. reasons for actions are among these motives. and the Objects of Deliberation and Devise’. the legislature has to consider the role of the individual appropriately: whether to understand human choice as the fulfillment of unfettered desire or subject to appropriate 53 See J. The Morality of Freedom (Oxford: Clarendon Press. for example.55 Since people are imperfectly rational.chosen”. Free Choice: A Self-Referential Argument (Notre Dame: University of Notre Dame Press.56 If there are two reasons on an issue and both direct action in different ways.53 Free choice is only possible where motives are reasons for actions or at the minimum. preferences. 1976). desires. Jr.57 Both choices either way would be for a reason and thus rationally based. Boyle. Returning to our issue at hand.. feelings. since neither reason precludes the other. 54 George. 56 See David Wiggins. in Amelie Oskenberg Rosty (ed.

Ronald M. Several Members of Parliament in refuting Siew Kum Hong’s call to repeal s 377A of the Penal Code alluded to the fact that since the prevailing majority view on public morality was conservative the law should reflect the dominant idea of political morality. 987. 60 18 . Thirdly. This is an ‘easy-way-out’ which I alluded to above and something which governments should not fall foul to. In removing or at least inspecting certain instrumental reasons at hand. Rhetorical references to ‘discrimination’ and the tyranny of the majority have to be scrutinized and so would rude taunts against homosexuals which do not respect their existence as proper human persons. vol 83 at col 2175 (22 October 2007) (Zaqy Mohamad & Indranee Rajah) 61 Donald. It is noteworthy that the Singapore courts regard ‘discrimination’ as lawful if there is an ‘intelligible differentia’ and if such discrimination is based on rational grounds they not unconstitutional. This I submit is the first step to the justification of rights in a legislative setting and consistent with practical principles expounded on by the authors above. 59 See Lim Meng Suang and another v Attorney-General and another appeal [2014] SGCA 53 [“Lim Meng Suang”] Parliamentary Debates Singapore: Official Report.60 I believe such an argument is dangerous and flawed and indeed a trap which Devlin fell into years ago (albeit due to loose use of phrasing). It does not consider if society is regressing or progressing morally and instead shirks the responsibility of dictating what the law should be. 59 The use of the word should not be immediately linked with a negative connotation. the legislature has to realize any hidden agendas in either side’s arguments. the object of rational decision-making is not immediately reached but we do move closer to our ideal. those limits might be subject to patriarchal and majority abuse under the guise of ‘religious’ beliefs as well. 61 This argument at best is relativist and reductive in nature and does not address the substantive issues at hand in a rational and objective manner.J. Slippery slope arguments are too often vainly used without cogency but it is indeed important to notice whether establishing certain ‘rights’ might lead to an opening of the floodgates. Before moving on to the second step. I would like to raise a worrying observation of Singapore’s lawmakers on this issue.(indeed rational) limits.. “Lord Devlin and the Enforcement of Morals” (1966) Yale L. Lastly. Of course. the legislature has to notice underlying emotional biases and remove them from the rational process of lawmaking.

the proponent bears the burden of proving his case and justifying introducing this new right which might encroach on existing rights and liberties enjoyed by other factions of society. Article 26 (2). NLT embraces Tolerance and does not preclude the acceptance of inconsistent moral norms if say. Non-instrumental reasons for actions free from ideological and emotional biases have to be provided in order to allow for any deviation from the existing moral norm. 3rd Sess. 2009 Rev Ed Sing). This can include an interest in their children’s education (which includes the type of sex/gender education they receive in schools) 63. See Universal Declaration of Human Rights. GA Res 217A (III) UNGAOR. A married couple in pre-dominantly conservative Singapore can be said to have certain justifiable interests flowing from the right of a state-sanctioned male-female marriage as governed by the Women’s Charter62. 10. tax rebates and child-bearing subsidies/incentives. Q. Tangible interests may include housing benefits. While it is unlikely that a fuller NLT would come to such conclusions.B. time and custom flowing from the right of a state-recognised male-female marriage. 64 Sum. Balancing Justifiable and Competing Interests The second key requires balancing justifiable and competing interests while viewing the role of practical reason not simply as one declaring rights but also according and prioritizing them functionally. Questions appropriately asked would involve: 62 (Cap 353. family life (as they know it) and even the way marriage is defined since any expansion of definition could be construed as an intrusion of their rights. the majority should then respect such interests and consider any legitimate interests a homosexual couple might have in SSM. If such conclusive reasons exist. Arguments justifying any possible erosion of such interests through the expansion of statedefined marriage must be made. In a political argument to recognize a new ‘right’ not recognized in law. SSM proponents have to weigh the suggested ‘right’ they are purporting against the preexisting interests of a conservative majority which have been justified according to the advent of law. UN Doc A/810 (1948) 71. Supp No 13. II-III. civil order was necessary. 63 19 . Art. 11.64 The second part of the second key involves addressing the prudential and technical reasons beyond moral reasoning as required by practical reason.

would it restrict the state’s practical concern for couples capable of procreation and the erosion of the strength of the family unit?  How should such a right be recognized? By expanding the state-sanctioned boundaries of marriage or by creating an institution of civil union? Are there other laws relevant? Other technical arguments which would then need to be addressed include scientific. 65 George. Ultimately. Perhaps. The two keys I have explored are but two of a multi-faceted theory which requires significant effort to truly understand. empirical and moralistic conceptions of heterosexual and homosexual sex. “Defence” supra note 42 at 139. I would have explored the possibilities of a full NLT account on SSM if I was not concerned by the often irrational arguments (by many of my peers) raised almost irresponsibly from a ‘liberal’ backdrop. Who is it for? Consenting males or females of a certain age?  Who recognizes the right? By the state or by private/quasi-public institutions only?  What is the priority of the right vis-à-vis existing rights in society? Does it encroach into existing rights and is it secondary to such rights? Is a fundamental human right or a mere state permission?  What does the right entail. my essay has consistently maintained the potential for abuse which Liberalism has readily lent itself to. They could either function as a scaled-down framework for rights justification or a foundational premise for a wider NLT. I believe that if we are able to change our language of rights discourse from one of rhetoric to one sufficiently reasoned in the manner above we can arrive at a nexus between arguments of competing ideologies. These go beyond the scope of the paper but are addressed extensively by George and Macedo. it is not even fair to term such illiberal arguments as Liberal. 20 . CONCLUSION There is only so much I can say within the scope of my paper. Nevertheless. The Natural Law account on the other hand is undeniably more conservative but at the same time more principled and balanced. does it entail the same tax benefits of married couples? What does it mean for society. The dialectical method does require a certain degree of ‘dusting off’.65 IV.