Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

John Finnis on Hart, Homosexuality, Immigration, and the Decline of Western Civilization

By Jack M. Balkin

Natural law philosopher John Finnis, of Oxford and Notre Dame Law School, thinks Western societies are quickly going to pot, and he lays some of the blame for this on sexual permissiveness (including homosexuality) and on loose immigration policies. These claims can be found in his recent essay on the political philosophy of H.L.A. Hart:

European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia?s or the Levant?s.

That is a dire prognosis.

Much of Finnis?s essay is taken up with a critique of Hart?s Law, Liberty, and Morality (1963), which argued against the criminalization of private, consensual, sexual behavior?homosexual behavior in particular. Hart?s argument, simply put, is that restrictions on natural sexual impulses exact a high cost on individuals (affecting ?the development or balance of the individual?s emotional life, happiness, and personality?); consensual private sexual conduct does not harm others; the state lacks a weighty justification to restrict it. Hart?s argument takes on added poignancy in light of the recent disclosure by his biographer that he acknowledged having homosexual attractions.

Finnis grants Hart?s argument that private homosexual conduct should not be criminalized, but he nonetheless insists that law can and should condemn homosexuality in various ways (although he does not specify, presumably this would include not allowing homosexual marriage or adoption). This is appropriate, he suggests, because homosexuality is immoral and potentially harmful to society:

To take up the issue on which Hart chose to focus?those who actually judge homosexual acts, like other non-marital sex acts, immoral, while they might grant that the private homosexual sex acts of two already morally corrupt adults in private do no harm, can argue with force that predisposing children to approve of adult homosexual acts, and to be disposed to engage in them when of age, is gravely and unjustly harmful to the child and to society, since it involves the child, and eventually perhaps the society, in a gross misunderstanding of the contribution sex acts have to make?and of the act-descriptive conditions without which such accts cannot make it?to marriage as the indubitably most favourable and fairest milieu for the procreation and upbringing of children and for the lifelong fulfillment of the married persons themselves.

It?s hard to read this argument (he elaborates further along the same lines) without seeing the strong echoes of two articles of faith in the anti-homosexual campaign in the United States. The first claim is that homosexuals pose an imminent danger to our youth: by sexual guile (or the offer of candy?), they corrupt heterosexual young people into becoming homosexuals. The second claim is that homosexuals pose a threat to marriage?either by breaking up existing marriages (seducing one of the partners), or because homosexuals would be happily married themselves if they did not indulge their homosexual desires.

These claims have always struck me as fatuous, resting, as they do, on the empirically dubious notion that one can be ?converted? into or out of homosexuality. (Hart raised this same doubt in his original essay, 67-68). Human sexuality is complex and comes in many shades, but it seems clear that a core homosexual or heterosexual orientation is not fundamentally subject to "conversion."

Finnis does not put it so baldly, of course, as his essay carries on in a properly philosophical tone. But reading it prompted me to wonder about the extent to which moral arguments by philosophers amount to common prejudices (or their own unexamined assumptions) dressed up in fancy attire.

His comments about immigration could have been uttered by a European Lou Dobbs: the ?community?s medium-term survival? is at risk because Europeans are not procreating enough, and owing to their ?replacement, as a people, by other peoples, more or less regardless of the incomers? compatibility of psychology, culture, religion or political ideas and ambitions, or the worth or viciousness of those ideas and ambitions.?

Said many times by doomsayers in the past, and frequently repeated by cultural-nationalist populists today, Finnis shrilly warns about the imminent demise of (European, Anglo-American) civilization posed by the aliens at the gates, the yellow peril, the Muslim hordes, the Mexican laborers?a collapse facilitated by the internal rot of moral decay and sexual debauchery.

Full post as published by Balkinization on September 29, 2009 (boomark / email).