Wednesday, December 03, 2008

Another thought on the Rights of Man and the "Confessional State"

Here's a thought experiment. How many of you would be comfortable if the State were to recriminalise homosexual activity? Let us imagine a situation in which the punishment for the "crime" was imprisonment, not a fine or a hanging.

While I would and do reject the legalisation of same sex marriage, you would find me among the protest marchers if we started imprisoning homosexuals.

Go on, go out on a limb. Tell me how you would react?


At Wednesday, December 03, 2008 5:03:00 pm , Blogger Hardman Window said...

From what one hears, putting them in a prison might be counterproductive...

At Wednesday, December 03, 2008 5:07:00 pm , Blogger Cardinal Pole said...

"... recriminalise homosexual activity ... imprisoning homosexuals"

Homosexuality was not outlawed. Sodomy was outlawed, regardless of whether the sodomite was heterosexual or homosexual and regardless of whether the catamite was male or female. Therefore it is not at all discriminatory, and this is how it should be. Sodomy is an affront to human dignity and should be recognised as such in law.

At Wednesday, December 03, 2008 6:18:00 pm , Blogger Shan said...

Interesting hypothetical, David. My gut reaction would be to join you. I suspect that someone will be along soon to explain why you and I are both wrong...

At Wednesday, December 03, 2008 6:23:00 pm , Anonymous Anonymous said...

The only reason why sodomy was made illegal and not lesbianism was that dear old Queen Victoria could not believe that women would do such things.

At Thursday, December 04, 2008 12:43:00 am , Blogger Louise said...

How many of you would be comfortable if the State were to recriminalise homosexual activity?

Interestingly enough, when the activists here in Tas started up in the early nineties, I was on their side because I thought - quite rightly - that the gov't should have limited ability to interfere in the lives of the average citizen etc and (poor victim of secularist thought that I am) I couldn't see why there should be difficult-to-police laws about such matters.

However, more recently, as I have come to learn just how bad sodomy is for people's health, I've come to think that anti-sodomy laws would actually be better for the community.

No-one need be sent to prison for having a homosexual orientation, for Heaven's sake! It isn't a matter of volition (in the main) so it cannot be the subject of law. In any case, fines would probably suffice for sodomy.

At Thursday, December 04, 2008 12:44:00 am , Blogger Louise said...

And then there's AIDS...

At Thursday, December 04, 2008 1:40:00 am , Anonymous Tom said...

Love long posts.

Hrm. Don't know that you can legitimately make sodomy per-se illegal. On my own reading of Aquinas' theory of Just Law (looking basically at questions 90-97 in the Summa Theologica) the question is, would criminalising sodomy contribute to the common good (that is to say, does it contribute to the good of all the citizens in common?). I think we have to address this in two situations, a) consentual sodomy and b) non-consentual sodomy.

Well, b is an easy option, as it falls under the category of rape and need not be re-criminalised as it is still currently criminal, and thus does not require a seperate law. The question then revolves around consentual sodomy only.

So, let us use the test of Aquinas' theory of Just Laws (I take this reading more or less from Norman Kretzmann who addressed this question of Aquinas' theory; Title is 'Lex Inuista Non Est Lex' in the "American Journal of Jurisprudence", vol 33, 1988).

Kretzmann lays out a series of basic comments (according to Aquinas) that we must have in order for a law to belong to that category we call 'Just Laws' (unjust laws lacking validity in a certain sense).

Laws must be
a) a directive of reason
b) aimed at the common good
c) promulgated by the government
d) pertaining to a complete community
e) leading people to or restraining them from certain actions
f) having coercive power.

Conditions c) through e) don't really concern us here, as we assume that such law would be promulgated by a valid government, so we may assume that the law is valid. f) would belong here, but as we are talking about questions of personal virtue (that is, consentual sodomy), the potential of enforcement is not particularly high. So, would such a law be just?

Interestingly, Aquinas addresses the basis of this question himself, when he asks "Whether it belongs to human law to repress all vices?" and "Whether human law prescribes acts of all the virtues?" I think that Aquinas answers (short answer) yes, (long answer) generally, yes, but also in certain circumstances, no.

While in certain circumstances, one might be tempted to say (for example) that obscenity, as a harm to the good of humans ought to be legislated against. But are we going to pass a particular law that forbids vulgar language from being used by anyone who works on the docks (taking the stereotypical view that sailors/dock workers often have a vulgar vocabulary). Well, as the law would be virtually impossible to enforce, it would quickly lose it's classification of law as such because it no longer retains coercive power. As such, it would be an act of injustice to attempt to enforce the law, because it would fail on conditions d) & f). That is, it would only be enforced against a minority of people, not the community as a whole, and as a large portions of the criminal actions would go unpunished, the law would in effect lack coercive force.

Aquinas argues very strongly against the idea of a governement simply legislating against all vicious action for two major reasons; firstly, that it would not be a practical feat for human law because human law could not count all vicious action (that is, it's insufficiency). Secondly, because such an act would be against the divine law; Human Beings cannot be made virtuous simply by the law instantly. Any attempt to do would result in the law being more or less ignored as those people with a weaker character or disposition to virtue would simply not be able to follow the law. (please forgive the following quote, but Aquinas puts it more eloquently than i can)

"Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices from which the virtuous abstain, but only the more grievous vices from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the rohibition of which human society could not be maintained". Summa, q96, a2. (boldness added by me).

Now those so disposed to consentual sodomy are in a state already where their characters and habits are going to be suffering from their actions. If such an act is consentual, then try as we might, i doubt we will convince them readily that their actions are indeed a harm to their good. Perhaps several centuries ago when the knowledge of the nature of man was more concrete and accepted, it might have been possible. In such a relatavistic society, i think that it would simply lead to mass-disobedience, harming the common good far more than helping it (for it is a harm to the common good for the law to be disobeyed, [creating in people a habit of such action] because, by its definition just law has as its purpose the common good).

So, no. I don't think you could reasonably re-criminalise consentual sodomy in our modern society. We are simply a society of humans too weak in character to obey such a law, and i think the resulting disobedience would simply serve to further harm the institution of the law and the common good that it ultimately serves.

At Thursday, December 04, 2008 8:03:00 am , Blogger Schütz said...

Tom, thanks for bringing the clarity of the Angelic Doctor into this discussion.

I was going to ask (when His Eminence weighed in saying that "Sodomy is an affront to human dignity and should be recognised as such in law") whether, if we thought we could legislate against consensual sodomy (even, for eg., between consenting wife and husband), we would go on to legislate against oral sex and masturbation, which is, according to the Church, just as much against nature as sodomy? (Sorry, this is a rather frank discussion!)

I think you have answered the question of the wisdom of such laws.

Louise said: "No-one need be sent to prison for having a homosexual orientation, for Heaven's sake!"

Nor did I suggest this. My hypothetical explicityly concerned "homosexual activity" alone.

At Thursday, December 04, 2008 9:58:00 am , Anonymous matthias said...

I disagree with same sex marriages and sodomy i believe is tantamount to sex in a sewer, however i would also protest if homosexuals were fined orimprisoned
Louise - the Inquisition is over -and discredited

At Thursday, December 04, 2008 11:19:00 am , Blogger Louise said...

Right, so now I want an Inquisition? (Such a loaded word). Matthias, we still have an Inquisition; it's called the Congregation for the Doctrine of the Faith.

I said:
No-one need be sent to prison for having a homosexual orientation, for Heaven's sake!

because I know that's the fear people might have and to make it explicit that it is not something I would advocate. Laws against sodomy would not necessarily lead to homosexuals being imprisoned.

Tom, I will have to read your post in greater detail when I have more time to properly absorb it, but I thank you for including it.

I don't think you could reasonably re-criminalise consentual sodomy in our modern society.

The use of "modern" here might indicate that in some way we have grown out of the natural law. That's probably not what you meant, but I'm always wary of such constructions as "x is not possible in our modern society."

We are simply a society of humans too weak in character to obey such a law

Well, I don't particularly find it difficult to abstain from sodomy! I think most women would be happy enough to abstain and at least some men, surely.

Having said that, I do think that as things stand, we have buckleys of actually reversing the trend at this point. In the same way that we have no hope of recriminilsing abortion any time soon, yet we all (or most of us) recognise that it ought to be done, so also I think we can say that - if we had the opportunity - we ought to recriminalise sodomy.

and chiefly those that are to the hurt of others

Gee willikers! Sodomy causes much hurt to a person's bum in the long term and there's more than ample medical evidence for that. So much so, and let's not forget the AIDS problem among gays here in Oz and elsewhere, that I think we can easily say it's a matter of grave importance for the common good.

But are we going to pass a particular law that forbids vulgar language from being used by anyone who works on the docks

No, because that would be silly. It would be silly, because it is not anywhere near as grave a problem as sodomy.

If we take the view that sodomy is not a big deal, then you can easily argue that we shouldn't legislate against it.

At Thursday, December 04, 2008 12:12:00 pm , Anonymous matthias said...

Louise said "grave a problem as sodomy."

Sodomy is as much a sin as adultery,greed and envy.Sin is Sin and there is no level of some sins being greater than others-they are all on the same level.They block our relationship with a Just and Holy God.

At Thursday, December 04, 2008 12:23:00 pm , Blogger Cardinal Pole said...


by dismissing point e) your analysis ignores the educative function of law.

Also, recall what Leo XIII taught in Libertas:

"The precepts, therefore, of the natural law, contained bodily in the laws of men, have not merely the force of human law, but they possess that higher and more august sanction which belongs to the law of nature and the eternal law. And within the sphere of this kind of laws the duty of the civil legislator is, mainly, to keep the community in obedience by the adoption of a common discipline and by putting restraint upon refractory and viciously inclined men, so that, deterred from evil, they may turn to what is good, or at any rate may avoid causing trouble and disturbance to the State."

Furthermore, your invocation of the following principle is irrelevant:

"Secondly, because such an act would be against the divine law; Human Beings cannot be made virtuous simply by the law instantly."

We are talking about repressing vice here, not coercing virtue.

So the question is whether this particular vice should be repressed. The whole idea here, explained in the Summa, II, II, q. 51, a. 4 ("Now it is evident that what is beside the order of a lower principle or cause, is sometimes reducible to the order of a higher principle ...") and by Pius XII in his allocution Ci Riesce, is that repression of vice (or, more generally, error), is a proximate norm, subordinate to the State's ultimate norm of the common good. That is, in certain prevailing circumstances it is necessary (temporarily, and with the hope ultimately of enforcing the proximate norm) to sacrifice, so to speak, a proximate norm in favour of the ultimate norm. Accordingly, you need to provide the evidence that a certain set of circumstances presently obtains that demands the sacrifice of the principle of discouraging sodomy. You have failed to do this. Try spending half an hour browsing the website of a government-funded, untaxed pro-sodomite health advisory body like ACON ( and try telling me that banning sodomy would not be a good idea. If people want to ignore the spiritual costs of rampant paraphilia, then they do so at their own peril, but even if only for public health reasons we cannot afford to ignore the physical costs.

Mr. Schütz,

you ask whether

"we would go on to legislate against oral sex and masturbation, which is, according to the Church, just as much against nature as sodomy?"

Yes. And not just 'because the Church says so', but because natural reason tells us so.

At Thursday, December 04, 2008 1:43:00 pm , Anonymous Tom said...

Firstly, i don't mean to dismiss point e) at all (i shall address this in more detail later, first to the point Louise made). My argument against criminilisation of sodomy is not that it is somehow today not against the natural law. That clearly is not the case. It is however against the divine law to turn men into virtuous beings via the law, this DOES including legislating against all forms of vice. My argument rests on this point, i think. The reality is that human law, having the purpose of promoting the common good, but being bound by a) the insufficiency of human knowledge and b) the weakness and disposition of men means that our law mustn't be based entirely on theoretical propositions, but must have a prudential application.

So Louise, i'm not trying to argue that Sodomy doesn't cause harm to others, clearly it does (and not just physiological, but strikes at our very nature in an attempt to re-create the pattern by which we exist). What i'm arguing is that if we have such a proportion of the population who take it as a given that sodomy DOES NOT necessisarily cause harm, then to legislate against it would cause those people who do not believe it to be a harm (that is to say, people who practise consentual sodomy) to be in a practised and repetetive act of disobedience to the law. This further creates a vicious habit and deepens the disposition to re-create such acts.

So the point i'm making is this, if such an act were to be legislated against, and that law were to be repeatedly broken (as it would almost certainly be) then you would cause more harm to the common good than you would help it. As a matter of justice, i do not think we could criminilise sodomy.

Cardinal Pole, i'm not dismissing point e), rather i meant to say that since all laws, to be laws, must conform to points c)-f), it is not the direct topic of discussion. If a law does not point towards action or inaction, then what does it point to? We have a law that says "when you wake up, make sure you are"? (this is still an action, i can't think of a law that doesn't legislate action of some kind, even contract law which legislates relationships, still legislates the action within those relationships) All laws point to action or inaction. However, i take your point that you argue, it is the role of law to educate and thus to direct such people as would practise this away from it. On this point you are certainly correct, those people who, considering vicious action, perhaps knowing that the law forbids it might be persuaded by such a law that what they are about to do is wrong (and thus not do it).

To that i would say; people in Australia do not believe our human laws to be a product and subject of the Natural Law. HLA Hart, Rawls and a host of others have argued the point of legal positivism to the point that it is more or less accepted (true, academically it is not so concrete, but most people who have not bent their will to the task of academic study would not be able to give you an account of the theory of natural law). By this, i think that most people think that laws are just laws for the sake of whichever political party is in power. A kind of ontology of power for the law if you will.

So, to legislate against sodomy would not carry with those people who currently DO practise sodomy any weight. As this is consentual sodomy, the police would have no capacity to enforce this. It would in effect, regulate disobedience to the law (which, even if it is positivistic still serves at SOME level the common good). For this i think it could not be legislated against.

At Thursday, December 04, 2008 2:59:00 pm , Blogger Louise said...

Just quickly, 'cos I'm in a rush:

Sodomy is as much a sin as adultery,greed and envy.

Sure, and if sodmoy were outlawed, then so should adultery be. Bit hard to outlaw greed and envy, however.

Sin is Sin and there is no level of some sins being greater than others-they are all on the same level.


All sins offend God, if that's what you mean.

However, we all know that there is a big difference between stealing a bikky from your Granny's bikky barrel and killing someone.

They block our relationship with a Just and Holy God.

Um. Well, as I say, all sin offends God and that would seem to be a bit of a block in our relationship with Him, yes. However, the Catholic Church distinguishes between mortal and venial sins and the Protties distinguish between "stumbling" and "backsliding."

Whether or not the State should make all mortal sins illegal is another question. And it so happens to be the question we are addressing.

At Thursday, December 04, 2008 2:59:00 pm , Blogger Louise said...

It would be a pity to continue without acknowledging Hardman's amusing quip.

At Thursday, December 04, 2008 3:01:00 pm , Blogger Louise said...

Incidentally, any of the seven deadly sins are as bad as murder in the eyes of God, but nobody says that because pride (for example) is not illegal therefore neither should murder be.

At Thursday, December 04, 2008 4:30:00 pm , Anonymous matthias said...

No difference Louise in stealing-whether it be on your tax return or pinching biscuit,or being full of pride,even if it is considered. But as to protestants differentiating between stumbling or backsliding,i can tell you as one brought up in Fundamentalist Protestantism there is no difference it is considered sin,and the term mortal sin is seen as being an anathema as it again it shows that we differentiate sins when God does not.

At Friday, December 05, 2008 9:20:00 am , Blogger Louise said...

Oh well, in that case we don't need any laws at all, do we? Let's just have at it!

Either that, or we need to make every sin illegal.

Which is it?

At Friday, December 05, 2008 9:58:00 am , Anonymous matthias said...

I think Louise we will agree to disagree because you are still in the Constantinian paradigm,where as i believe we are in a post Christian society,where Christianity is battling in the market place of beliefs and faith.
This does not mean that we give up on Society,like the Amish or Hutterites do,but that we maintian our witness and our beliefs in season and out of season.
This is my last post for some time. I hope you all have a Merry Christmas

At Sunday, December 07, 2008 3:09:00 am , Blogger eulogos said...

For those of us in the other hemisphere, what on earth is a "bikky"? Once I know what a bikky is I suppose I will understand what a "bikky barrel" is.

By the way, it is my understanding that oral sex is acceptable as foreplay or generally in the context of a sexual act which involves natural intercourse and the deposition of semen in the vagina. I've seen this debated on Catholic blogs, and there does remain a tiny minority who believe oral sex is always wrong, but I think that what I have said is the consensus even among the most conservative Catholics. For instance, the Theology of the Body listserv had only one member who spoke up for the stricter interpretation.

Let's face it, it is not practical to make sodomy illegal. (By sodomy do we mean putting the penis into the anus? In legal statutes, sometimes other acts, such as mutual masturbation, are also called sodomy. I found out this when I attended the trial of a child molester who had been my children's head start teacher and drama coach. ) In some of the US states it is now not even possible to maintain the illegality of doing it in a public park!

I would rather return to the time of a universal "don't ask, don't tell, stay under the radar" policy regarding homosexual behavior. If you stay in the closet, I won't try to open the door." Or if it is quietly known that the guy you live with is your significant other, but you don't get flamboyant about it, that's fine with me too. My immediate boss, a friendly comfortably pudgy guy, with no gay mannerisms that I can see, who loves to garden and shares plants generously, takes his friend on office bus trips, but many people still don't know they aren't just friends, since they don't smooch or bill and coo in public. See, I am happy to leave you alone and even be glad such a nice guy is my boss, but I want to keep things in general, heteronormative.

However that is a big no-no on most college campuses these days, to be "heteronormative." You mustn't say anything which indicates the probability that a man is attracted to women, or that students are likely to get married and become parents. Even though only a small percent are homosexual, it is veboten to be heteronormative.

And that's the state of the issue these days, not whether we ought to make sodomy illegal.


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