The Signposting Argument for 377A and the role of the LAW

For the class where we were discussing Section 377A of the Penal Code under Singapore law which criminalizes gay sex, here’s the signposting argument which I wasn’t able to clarify in class:

Detractors(those who wanted 377A to be retained) have argued that the law should reflect what is and is not permissible by society. In other words, legislation serves an important signposting function of reflecting social morality. Hence, repealing this law would send the wrong signal to the public that sexual acts between members of the same gender is actually condoned by society. This will result in murky or confusing morality signals as most people take their cue from the law when it comes to morality. Therefore, Section 377A should not be repealed.

However, the lawyer in the article (see article above) rebutted that such a signposting argument does not hold water. This is because there are unambiguously immoral behaviour or acts in our society today that are not signposted as illegal by the law. Cases in point include prostitution, extra-marital affairs, marital rape, etc. Society obviously frowns upon these acts, but they are not signposted as illegal. Thus, even if one regards same-gender sex as immoral, it is not fair to retain the 377A to criminalize it. To insist on doing so is to be guilty of applying double standards as one would in effect be unfairly singling out same-gender sex as a crime while turning a blind eye to other equally reprehensible acts. The law should be carried out in a fair manner, not operate in a selective manner according to one’s prejudice. Hence, using the signposting argument to argue for the retention of Section 377A lacks conviction.

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THE FUNCTION OF LAW – The relationship between legislation and social norm
I raised this point as it is related to the function of law which I mentioned before. The law is supposed to reflect social norm (i.e. social morality in this case) insofar as these social norms are desirable. Hence, it is perfectly ok to have the law says that eating your children is a crime, and taking care of your parents is not a crime, ‘cos these are what our society feels. It is also important that these acts are desirable.
In cases where the social norms in concern are not desirable and are motivated by prejudice, then the other function of the law needs to come in – the law will have to re-define the social norms (since these are flawed) in order to correct the undesirable behaviour of the public. Say if the social norm of a particular society is to discriminate against women or eat one’s parents when they are old, then the law -- instead of serving its earlier function of reflecting (and thereby endorsing) this flawed social norm – has to redefine this social norm by making it illegal to continue discriminating against women or eat one’s old parents. You can see it as the law being used to correct a flawed social norm and educating people on what a desirable social norm should be like.

In a nutshell, legislation (i.e. the law) has two main functions – to reflect and reinforce/perpetuate desirable social norms, as well as to redefine, correct and educate people against flawed/undesirable social norms. Where society is enlightened, the law has to reflect its desirable behaviour and give it its endorsement. But where society is misguided, then the law has to take the lead to enlighten society on the right path.

Try to relate to last year’s qn on

1) “Can prejudice ever be eliminated?” -- by using this point on the role of the law to give you that two sides of the argument. Hint: the law can both perpetuate and alleviate prejudice.

2) "Consider the view that efficient government is more important than democracy." -- One common criticism of democracy is what is termed 'tyranny of the majority'. So even if the govt is efficient at getting things done, but if this comes at the expense of people's rights and freedom (majority discriminating against the minority gays and lesbians) then is it still desirable?