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
liberalisms 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.

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.

In my essay, two keys will be established in this exercise of practical reasoning; the first
being the removal of flawed emotional, 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. This
enquiry will recognize the common conservative and liberal arguments on both sides of the SSM
camp. In particular, 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. 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.
Part I of my essay will focus on a critique of Illiberal Liberalism. I will not give a
substantive account of liberal theories here, for it has been dealt with by more capable hands
elsewhere.2 Instead, 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.
Part II of my essay will then focus on restating Natural Law principles; in particular, the
concept of practical reason. 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.
Lastly, in Part III, 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. The essay
will not conclude on the justifiability of the issue but will provide a possible framework in
addressing it. Hopefully, after this essay, the reader will be able to recognize the call to reason.

See Thio Li-Ann, A Treatise on Singapore Constitutional Law (Singapore: Academy Publishing, 2012) at 44-51
[Thio].
I am indebted to Dr Thio for her insights on liberal thought and natural law. Much of the content on liberalism is
credited to her book. Other references include many of which were highlighted by her as well.
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.g. Classical Liberalism) due to the scope and word limit of my
essay. 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.
Much credit goes to my dear friends Alex Goh and Samuel Koh for commenting on my initial drafts. Any mistakes
are of my own making.

I.

A CRITIQUE OF ILLIBERAL LIBERALISM

People understand their own business and their own interests better, and care for them more,
than the government does, or can be expected to do. This maxim holds true throughout the
greatest part of the business of life, and wherever it is true we ought to condemn every kind of
government intervention that conflicts with it. John Stuart Mill3

Liberalism propounds the twin values of Liberty as well as Equality. Taken to an extreme,
Liberty can become a form of radical individualism and Equality can become radical
egalitarianism.4 These two conceptions have spawned Illiberal Liberalism which advances the
core beliefs of a societys liberal elite, however dogmatic. While there are more than several
divergences, what unites all forms of liberalism is the assumption that thinness of
anthropological, moral and metaphysical assumptions is the prerequisite for freedom and peace
since thicker assumptions will lead to conflict and thwart human cooperation.5 According to Thio,
liberal societies rest on the two main pillars of a meta-liberal value of normative liberalism,
which prioritizes individual autonomy and the neutral state (which facilitates) individual
autonomy (and) does not espouse a shared conception of the good, with individuals free to
pursue their own conception of the good life.6
I view it important that we unpackage certain aspects of liberal arguments. This is for the
purposes of identifying fundamental arguments of SSM proponents who justify themselves via a
liberal framework. Accordingly, the three problems of an extreme form of liberalism are:
A. The Veil of Neutrality
B. A Misuse of Rights a form of Rights Fetishism
C. 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):

Mill, John Stuart, Principles of Political Economy with some of their Applications to Social Philosophy (London;
Longmans, Green and Co, 1909) at para V11.11.
4
Robert H. Bank, Hard Truths about the Culture War, (Article) (United States: Institute on Religion and Public
Life, 1995), online: First Things http://www.firstthings.com/article/1995/06/001-hard-truths-about-the-culture-war
retrieved 4th October 2014 [Bank].
5
Thio, supra note 2 at para 01.127.
6
Thio, supra note 2 at para 01.128.

a) Interest-motivated views on society propagated under the guise of Equality

(Egalitarianism) and Liberty (Free-will)
b) The Intolerance of Tolerance, 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.
A. 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.

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. 8 In turn, 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. When turned into an encompassing ideology, liberalism is in fact not neutral with
respect to a conception of the good life, since certain social structures and traditions are
effectively censored.9 The problem of maintaining neutrality is that modern liberal discourse is
often not a language of freedom but a language of necessity. 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.11
In Michael Sandels famous Justice lectures, 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. Sandel recognized that the court
adopted a liberal, neutral strand which emphasized autonomy, choice, consent. However, he
states that if the court were to truly uphold individual autonomy to the extent of which liberals
conceive it to be, and for government to be truly neutral (in liberal terms) on the moral worth of
7

Bank, supra note 4; Ryszard Legutko, Whats Wrong with Liberalism (2008) Modern Age 7 at 13 [Legutko].
See Legutko, ibid at 10.
9
Ibid.
10
Ibid.
11
Graham Walker, The Idea of Non-liberal Constitutionalism in Ian Shapiro and Will Kymlicka (eds) Ethnicity
and Group Rights (New York: University Press, 1997) 154 at 170.
12
798 N.E.2d 941 (Mass. 2003).
8

voluntary intimate relationships, the policy adopted should not accord recognition to certain
associations and unions rather than others.13 This argument brought to the extreme would result
in the scenario envisaged by Michael Kinsley, who suggests privatizing marriage altogether and
removing it from state definitions and sanctions.14 In essence, 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, its purpose or point. And to argue about the purpose of a social institution like
marriage, is to argue about the virtues it properly honours and rewards. The debate over same sex
marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the
honour and recognition that, in our society, state sanctioned marriage confers. So the underlying
moral question cannot be avoided. 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.
When procedural liberalism is abused under such a guise it displaces certain conceptions of
fundamental facets of society, like marriage. To put it plainly, while various philosophies such as
Democracy, Marxism, Communism and even Fascism all purport and believe that they have a
conception of the good and what society should be, they do so openly and seek to convince the
recipient of an imposition of such a view. This is usually avoided by Liberals in order to avoid
the need to pursue convincing arguments for their cause. This dangerously influences the less
perceptive majorities amongst our societies.
B. 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. This usually goes hand-in-hand from the
starting point of neutrality as mentioned above. 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. 16 Instead of rightly
qualifying certain individual freedoms as previously unrecognized, self-motivated minorities
might employ this rhetoric under the veil of neutrality to enforce their arguments as self13

Michael Sandel, Justice: Whats the Right Thing to Do? Episode 12:DEBATING SAME-SEX MARRIAGE,
(Video) (United States: Harvard University, 2009), online: Youtube < https://www.youtube.com/watch?v=EzD9P9sj4M&list=PL66DFF275B46BEF40&index=12> retrieved 4th October 2014.
14
Michael Kinsley, Abolish Marriage, Washington Post, (3 July 2003) at A23.
15
Michael Sandel, Justice: Whats the Right Thing to Do? (2011) 91 B.U.L. Rev. 1303 at 1307.
16
Bank, supra note 4.

evident and universal.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.18 What subsequently happens
is that legal discourse turns rights into an absolute value and creates rights fetishism in
society, as coined by her. This happens when rights acquire qualities and properties which it
lacks outside the social relations and practices which constitute the fetish.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.20
Understood more colloquially, the distinct problem of Anglo-American style liberalism is
the assumption that it was seen as the end point of political theory evolution. The idea of freechoice is embedded in American society, for example:
In terms of fetishizing the idea of choice, the U.S. is the absolute pinnaclewe want to be able
to choose everything that matters, as well as the things that dont. Barry Schwartz, 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, in a demand for a
voice in governanceand spiritually, in the demand to choose and create exactly the kind of
individual life, and self, you believe in. In the US, the overriding perception is that anything you
do out of allegiance to tradition and social expectation is inauthentic and not you. Because the
real you is the choices you make.21

The obsession with choice stems from the over-extended notion of Liberty. 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,
balancing of prevailing rights and recourse to reasoned argument. 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. The greatest danger is when rights
become a trump without adequate justification and a weighing of other justifiable interests.

17

Ibid.
Valerie Kerruish, Jurisprudence as Ideology (London; New York: Routledge, 1991)
19
Ibid.
20
Legutko, supra note 7.
21
Amy S.Choi, How Cultures around the World make Decisions, (Article) (TED Conferences LLC, 21 Oct 2014),
online: Ideas.Ted http://ideas.ted.com/2014/10/21/how-cultures-around-the-world-make-decisions/ retrieved 6th
November 2014.
18

C. 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. While it may be argued that this is precisely its intention, which is
to provide a framework within whicha 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.22 Legal ordering is necessary; in fact constitutions
often provide a certain ordering of the inhabitants of the city-state.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. The corollary of this is that, governments fail to provide guidance and to utilize the
law as a teacher. 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.
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).
On the assumption that laws role is not to merely facilitate desires and individual goals
but to provide a coherent common good for society, the anthropological thinness of liberal
governance is unattractive. What is most unattractive is not simply the lack of substance but as
argued above, the chances that thinness and neutrality become a guise to posit certain hidden
agendas. 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. For example, 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 societys views.24

22

Legutko, supra note 7.

Aristotle, Politics III.1.1274b32-41.
24
For example, observe the political and societal reaction to the Goodridge case.
23

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.
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. 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; 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.26 This will all be relevant as we develop the Natural
Law principle of practical reason as a methodology for rights justification.

II.

NATURAL LAW THEORY AS A METHODOLOGY

The law is reason unaffected by desire. Aristotle27

Natural Law Theory (NLT) has often been misunderstood and poorly explained. Liberals
dismiss NLT arguments as thinly veiled religious fundamentalism while skeptics like Holmes
dismiss Natural Law theorists as having a nave state of mind for simply accepting broad and
general principles without discernment. 28 In the Enlightenment era, NLT was overtaken by
humanists, Enlightenment naturalism and moral reductionists.29 This decline was no doubt aided
by confusion over NLT and Enlightenment naturalism and other efforts to secularize NLT.
Whether by being the cause or effect, these philosophical changes were marked by misreadings
and misunderstandings on Thomas Aquinas. Lastly and more recently, the emergence of legal
positivism seems to have completely displaced NLTs place in legal thought today. Even Finnis,

25

For a detailed breakdown of how such arguments are formulated, my predecessor and senior holds clear insights
in: Dominic Chan, What is Right and what is a Right?: The Claim to Same-Sex Marriage, the Politicization of
Rights and the Morality of Law (2004) 24 Sing L.Rev at 93-137.
26
I allude to the Christian and Catholic faiths because they provide the ideological basis for the perennial stream of
Natural Law.
27
Aristotle, Politics III.1287a32.
28
Oliver Wendell Holmes, Natural Law, (1918) 32 Harv. L. Rev. 41.
29
Adam M. Levin & Darren M. Staloof, Enlightenment Critics of Natural Law, (Article) (The Witherspoon Institute)
Online: Natural Law, Natural Rights, and American Constitutionalism http://www.nlnrac.org/critics/enlightenmentcritics (retrieved 10 October 2014).

who is greatly credited for his work in restating NLT, has his fair share of critics, with many of
them focusing on the lack of justification for his self-evident basic goods.30
A restatement of NLT is in order. I believe that NLT treads objective middle ground and
contrary to popular belief, is not necessarily an endorsement for a theocratic state. Not only is
Natural Law a comprehensive theory of law, its fundamental tenet, practical reason, offers a
balanced approach to rights justification. Practical reason, while slightly undone by writers who
tend to write in the abstract, can be practical, clear and even flexible. 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. It may appeal
more satisfyingly than purely legal arguments, which may be overly technical and unrelatable to
the layman.
In this part, I contend that Natural Law is a viable philosophy because it is (1)
Comprehensive as a Legal Doctrine; (2) Reasoned and (3) Capable of Offering a Balanced
Approach to Rights Justification. I allude to classical NLT consistent with a Thomistic account.31
The focus will be on the central tenet of practical reason by which I shall later formulate and
apply as methodology. By propounding a Natural Law account as a viable legal philosophy I
seek to provide an alternative to liberal ideology for rights justification. 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; one which NLT provides and one which we shall now look at.
A. NLT is Comprehensive as a Legal Doctrine
NLT is a complete legal theory which is substantive, normative and not partial unlike positivist
or critical legal theories. It provides a holistic picture for law as a framework and to carry out its
function of legal ordering. It propose(s) to identify principles of right action moral principles

30

Alex E. Wallin, John Finniss Natural Law Theory and a Critique of the Incommensurable Nature of Basic
Goods, (2012) 35 Campbell L. Rev. 59.
31
However, I do not agree with Finniss notion of self-evident basic goods which he defines as amoral, as this
precludes or fails to explain moral reasoning in earlier Thomistic accounts.

10

to justify how one should choose and act in ways that are compatible with a will towards
integral human fulfillment.32
NLT can provide the basis and justification for positive law. Aquinass definition of law
requires that in political communities, a group, 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. In this sense, justified authorities derive the law they make
(positive law) from the natural law or, equivalently, translate natural law principles of justice and
political morality into the rules of positive law.33
NLT need not be theocratic and can be applied to secular societies. 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. At its core, 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, 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.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. The latter proposition nevertheless, does
not preclude the former, broader view. It is from this starting point which we are able to
formulate norms based on practical reason.
To digress slightly, this starting point can explain why natural lawyers and SSM
proponents have such divergent views. 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, Joseph M. Boyle, JR. & Germain Grisez., Nuclear Deterrence, Morality and Realism (Oxford:
Clarendon Press, 1987) at 281-87.
33
Robert P. George, Natural Law, (2008) 31:1 Harv. J.L. & Pub. Poly, 188 [George, Natural Law].
34
Hugo Grotius, Prolegomena to the Law of War and Peace (Liberal Arts Press, 1957) at 10.
35
George, Natural Law, supra note 33 at 182.
36
Ibid.
37
Ibid.

11

rational purposes. 38 While both liberal frameworks and natural law frameworks are selfempowering and begin from the individual in many ways, the dichotomy is clearly seen by the
more substantive vision of the individual in the latter and the reductive account of the former.
B. Practical Reason
Finnis defines NLT as the set of principles of practical reasonableness in ordering human life
and human community39. 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 states legal umbrella. Practical reasoning of the NLT kind is different from
deontological and utilitarian approaches. It requires reasoning about both the right and the
good, 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.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.41
If reasonable persons do disagree, how do we arrive at an objective practical reason,
especially without the benefit of perfect hindsight?
Grisez, Finnis and Boyle will argue that what distinguishes true, rationally motivated
actions is that people perform them for non-instrumental reasons. 42 Rationally grounded
arguments founded on sub-rational motives may not be reasonable in an intrinsic sense.43 An
intelligent grasp of the intelligible point of performing the action is required, unlike Humean
non-cognitivism which is slave to passion and desire. 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.44The ideal is an Aristotelian one of law (as) reason unaffected by desire.45
In short, objective moral norms are results of conclusive and non-instrumental reasons for action.
38

See generally, Robert P. George, Same-Sex Marriage and Moral Neutrality in Clash of Orthodoxies: Law
Religion & Morality in Crisis (Wilmington, Del: ISI Books, 2001).
39
Finnis, Natural Law and Natural Rights (Oxford: University Press, 1997) at 23.
40
George, Natural Law, supra note 33 at 185.
41
Ibid.
42
Robert P. George, In Defence of Natural Law (Oxford: Clarendon Press, 1999) at 18 [George, Defence].
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, but is also in conformity with all moral norms. See George, Defence ibid at 126.
44
Ibid at 24.
45
Aristotle, supra note 27.

12

Yet the ideal is not always met, because for human beings, we are rational animals, but we are
imperfectly rational.46 Or we have self-interested motives for disrespecting certain rights or
minorities.47 The debates for/against the objectiveness of practical reason are endless. Yet, 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. 48 I submit that objectivity is possible and the first key in my
methodology would be to constantly identify flawed emotional, ideological or self-interested
premises which cannot be successfully defended as rational. Thus, in developing a NLT
methodology or framework, I believe that for ideologies propounding their agenda and
conception of rights, 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.
C. Natural Law Theory capable of offering Balanced Approach to Rights Justification
NLT strikes the middle ground between radical individualism and collectivism, both of which do
not do justice to the rational human person who is of intrinsic value as alluded to above.
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. (This
immediately goes some way in refuting liberalistic arguments, with its unbalanced focus on the
autonomy of the individual.) Instead, NLT is interested in the well-being of human persons
intrinsically and this includes relationships with othersin formal and informal communities
while disallowing him or her to be treated as a mere means to others ends.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.50 For example, 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. Balancing of justifiable
46

George, Natural Law, supra note 33 at 180.

Ibid.
48
George, Natural Law, supra note 33 at 181.
49
Ibid at 173.
50
Ibid at 174.
47

13

interests would be a prevalent theme instead of utilitarian, consequentialist or aggregative

accounts of moral reasoning which would not satisfy the rational person starting point.51
This balancing act is inherent in the way practical reasoning plays out in rights
justification. NLT views the nature of rights and law in a complex, multi-dimensional fashion.
In order for rights to be justified, practical reasoning inspects not only what right to whom it shall
be given to, but also:
1) Who provides or enforces the right (to/against whom) and why they should do so (e.g.
education or healthcare provider for the provision of free education or healthcare to a
specified group of persons; police for a right to public peace)
2) What is the priority of such a right vis--vis pre-existing rights or justifiable interests
already proclaimed (e.g. 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. 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.

III.

APPLYING PRACTICAL REASON AS A METHODOLOGY

We now begin on our inquiry bearing in mind the two keys mentioned above. 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 Alexys balancing approach: see generally Robert Alexy, A Theory of Constitutional Rights,
translated by J. Rivers (Oxford: Oxford University Press, 2002); also see John Finnis, Fundamentals of Ethics
(Oxford: Clarendon Press 1983) 80-108.
52
George, Natural Law supra note 33 at 175

14

judicial systems. Instead, what I believe is that a Natural Law perspective enables us to
understand the philosophical base for whatever rationality we subscribe to.
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.
2) The law has no place in imposing their moral views on citizens they should remain
neutral on issues of morality; there is a realm of private morality which should be out of
reach from the laws hands.
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.
4) Homosexuals thus have a right to marriage and the right to extend the state-sanctioned
definition of marriage.
Consider second the possible counter-argument by a conservative who seeks to uphold the notion
of marriage as defined by male-female union.
1) Marriage is traditionally and rightfully defined as a natural male-female union.
2) Homosexuality is an unnatural act and thus SSM should not be ordained by the state; the
law has had boundaries on such acts for rightful reasons and should not be changed.
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; discrimination is justifiable for the purposes of upholding societal
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, rather than descending
into an argument at cross-purposes.
A. Identifying possible Flawed Emotional, Ideological and Self-motivated Premises
There are plenty of premises which are motivated by instrumental reasons inconsistent with
practical reason as posited above. Below in Table 1, I list down possible starting points of both
camps which should be scrutinized through practical reason before the reasons they provide in
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the justification of their various conceptions of the common good (their philosophies and
ideologies) can pass considerable muster as conclusive reasons for action.
Table 1
Liberal (SSM)
Philosophical Starting Point Individual

Conservative (Anti-SSM)

Autonomy

Freedom

Ideological Preferences

Human

and Religious

and

Traditional,

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.

religious view in society.

Identifying and eventually removing possible false premises will help legislators identify
the possible instrumental reasons which provide non-conclusive reasons for action, in turn
helping them then identify non-instrumental reasons providing conclusive reasons for actions
which then shape moral norms. When in the process of rights justification, 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
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chosen.53 Free choice is only possible where motives are reasons for actions or at the minimum,
reasons for actions are among these motives. There can be no free choice where the only
possible motives for action are sub-rational, for example, feelings, desires, preferences, habits,
emotional inertia. 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; people are able to make free choices not
determined by desire.55 Since people are imperfectly rational, they may have a conclusive reason
to perform an act and yet an emotional motive (strong aversion) to performing it; this would be
akin to a failure and weakness of the will.56 If there are two reasons on an issue and both direct
action in different ways, the choice between the two is rationally underdetermined and it would
not be wrong to pursue either direction, since neither reason precludes the other.57 Both choices
either way would be for a reason and thus rationally based, yet there was no conclusive reason
for making it one way rather than the other. 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, in deciding the moral norms which reflect the laws of our society, the legislature
has to pay attention to instrumental reasons which provide false conclusive reasons. Returning to
our issue at hand, the legislature, in evaluating countervailing arguments, 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.
Secondly, 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. Boyle, Jr., G. Grisez and O. Tollefsen, Free Choice: A Self-Referential Argument (Notre Dame: University
of Notre Dame Press, 1976).
54
George, Defence supra note 42 at 117.
55
Ibid at 116.
56
See David Wiggins, Weakness of Will, Commensurability, and the Objects of Deliberation and Devise, in
Amelie Oskenberg Rosty (ed.) Essays on Aristotles Ethics (Berkeley: University of California Press, 1980)
57
See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986).
58
George, Defence, supra note 42 at 117-118.

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(indeed rational) limits. Of course, those limits might be subject to patriarchal and majority abuse
under the guise of religious beliefs as well.
Thirdly, the legislature has to notice underlying emotional biases and remove them from
the rational process of lawmaking. 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. 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.

59

The use of the word should not be

immediately linked with a negative connotation.

Lastly, the legislature has to realize any hidden agendas in either sides arguments.
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.
In removing or at least inspecting certain instrumental reasons at hand, the object of
rational decision-making is not immediately reached but we do move closer to our ideal. 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.
Before moving on to the second step, I would like to raise a worrying observation of
Singapores lawmakers on this issue. Several Members of Parliament in refuting Siew Kum
Hongs 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.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). 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. It does not consider if society is regressing or progressing morally and
instead shirks the responsibility of dictating what the law should be. This is an easy-way-out
which I alluded to above and something which governments should not fall foul to.

59

See Lim Meng Suang and another v Attorney-General and another appeal [2014] SGCA 53 [Lim Meng Suang]
Parliamentary Debates Singapore: Official Report, vol 83 at col 2175 (22 October 2007) (Zaqy Mohamad &
Indranee Rajah)
61
Donald, Ronald M., Lord Devlin and the Enforcement of Morals (1966) Yale L.J. 987.
60

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B. 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. In a political argument to recognize a new right not recognized in law, 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.
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 Womens Charter62. This can include an interest in their childrens education
(which includes the type of sex/gender education they receive in schools) 63, 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. Tangible interests may include housing benefits, tax
rebates and child-bearing subsidies/incentives.
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, time and custom flowing from the right of a state-recognised male-female marriage.
Arguments justifying any possible erosion of such interests through the expansion of statedefined marriage must be made. 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. If such conclusive reasons exist, the majority should then respect such interests and
consider any legitimate interests a homosexual couple might have in SSM. While it is unlikely
that a fuller NLT would come to such conclusions, NLT embraces Tolerance and does not
preclude the acceptance of inconsistent moral norms if say, civil order was necessary.64
The second part of the second key involves addressing the prudential and technical
reasons beyond moral reasoning as required by practical reason. Questions appropriately asked
would involve:

62

(Cap 353, 2009 Rev Ed Sing).

See Universal Declaration of Human Rights, GA Res 217A (III) UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810
(1948) 71, Article 26 (2).
64
Sum, II-III, Q. 10. Art. 11.
63

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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--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; does it entail the same tax benefits of married couples? What
does it mean for society; would it restrict the states 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,

empirical and moralistic conceptions of heterosexual and homosexual sex. These go beyond the
scope of the paper but are addressed extensively by George and Macedo.65

IV.

CONCLUSION

There is only so much I can say within the scope of my paper. 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. Perhaps,
it is not even fair to term such illiberal arguments as Liberal. Nevertheless, my essay has
consistently maintained the potential for abuse which Liberalism has readily lent itself to. The
Natural Law account on the other hand is undeniably more conservative but at the same time
more principled and balanced. The two keys I have explored are but two of a multi-faceted
theory which requires significant effort to truly understand. They could either function as a
scaled-down framework for rights justification or a foundational premise for a wider NLT.
Ultimately, 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. The dialectical method does require a certain degree of
dusting off.
65

George, Defence supra note 42 at 139.

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