Wednesday, July 8, 2009

A comment at The Punch on India’s High Court ruling on sodomy

As you probably know by now, India’s High Court has capped off “Lesbian, Gay, Bisexual, and Transgender Pride Month” in style, ruling that section 377 of the Indian Penal Code 1860 is unconstitutional. Section 377 says:

Unnatural Offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life …
So another one bites the dust (or should that be pillow?!) and joins Club Buggery, abandoning the natural law in favour of a crude positivism. Here is a comment which I have submitted for publication at, a website which News Limited bills as “Australia’s best conversation” and aims to develop into the Australian answer to the Huffington Post, in response to an article by Mr. Stephen Keim S.C., examining the ruling in greater depth (but no less approvingly) than the other reports which I’ve read:


“Only now is it legal to be gay in India”

An inadequate headline because, as the article goes on to note, ‘gayness’ wasn’t illegal; rather, buggery was illegal, regardless of whether the sodomite was homosexual or heterosexual and regardless of whether the catamite was male or female. For this reason, plus the fact that other reports indicate that sodomy might just be de-criminalised rather than legalised, a more apt headline would be something like “Only now can people sodomise other people (and, apparently, animals) with impunity in India”.

“Section 377 of the Indian Penal Code 1860, although drafted by Lord Macaulay, speaks with the coyness of Queen Victoria.”

I don’t think it’s necessarily a matter of “coyness”, or a reluctance to use the terms “buggery” or “sodomy”, or that it’s a “euphemism” to speak of “carnal intercourse against the law of nature”. The laws of morality, and in turn the laws of society, can have their basis only in either natural law—in which the good is that which suits the objective *nature* of the thing desiring it—or in positive law, in which the good is whatever the person desiring it might like to *posit* as good, which is to say, the good is whatever people will consent to, and hence ultimately the good is, for positivists, whatever suits people’s subjective tastes and preferences. (One might suggest that a third alternative would be some combination of natural law and positive law, but since the combination would be determined by the tastes and preferences of the person determining it, it would still be fundamentally positivist, and hence there really are just two alternatives.) But people will consent to all sorts of self-destructive things (just look at the unfortunate David Carradine), so natural law is the only reasonable basis for morality. But India, it seems, has decided to embrace the Western liberal lunacy of positivism, and embraces it for the flimsiest of reasons—anti-buggery laws do not contradict any of the three cited articles of the Indian Constitution, and as for the effects of anti-buggery laws on A.I.D.S. prevention programmes, the role of the *justice* system is to adjudicate on matters of *justice*, not matters of prudence; prudential matters are the concern of the executive branch of government. And the notion of sodomy as a ‘human right’ is laughable: rights can only have what is true and good as their object, and since the good can only be that which suits the nature of the thing desiring it, sodomy cannot possibly be the object of a proper right, since it does not suit the respective natures of the organs involved or of the persons involved.

“The judgment is particularly moving where it recounts …”

Here we have two logical fallacies: the appeal to emotion, and the violation of the principle that abuse does not detract from use. The fact that police abused their authority and used brutality against sodomites does not diminish the brutality of sodomy, and both kinds of brutality should be punished in a just society.

Reginaldvs Cantvar
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Reginaldvs Cantvar
Feast of St. Elizabeth of Portugal, Queen, Widow, A.D. 2009

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