Benjamin Bestgen: Law, morality and aesthetics

Benjamin Bestgen

Benjamin Bestgen discusses how moral judgements are affected by aesthetic perception in his latest jurispurdential primer. See also parts one, two and three.

In March 2020, Singapore’s High Court dismissed a challenge to repeal s.377A, a colonial-era law that penalises homosexual acts between men with two years’ imprisonment (lesbians are not covered by this). The court noted that in practice this law was rarely enforced but the legislation remained important to reflect public sentiment and beliefs in the socially conservative city-state.

Laws regulating human sexuality (or any laws that address permissible clothing, art, food and behaviours) are interesting because they show a clear overlap between morality, aesthetics and law.

Proponents of anti-gay laws often claim to be religiously or culturally motivated or argue that anything but heterosexual behaviour is harmful, contravenes “natural behaviour” or is “abnormal”.

All these points have been rationally countered and it is increasingly understood that homosexuality is neither unnatural nor harmful. Religious perspectives are open to interpretation on the subject, if religious arguments are acceptable at all. Human societies throughout history took different and changing views on various sexual matters, from condemnation and persecution to celebration, acceptance or indifference. And normality is a statistical term, pointing to what is most common or average in a society at any given time: but just because something is less common does not make it deplorable or dangerous.

But still, the anti-gay proponent will insist on their position and move to enact their laws (like the Ugandan Anti-Homosexuality Act 2014) or preserve existing ones (like Singapore).

The psychologist Jonathan Haidt describes this phenomenon as “moral dumbfounding”: even though a person has been shown that their judgement is rationally unjustifiable, they will obstinately insist on it. Explanations for why that is so have been offered.

Haidt thinks that what is actually motivating moral judgement are emotions like disgust, anger, shame, contempt and intuitions about harmfulness, fairness, purity, authority or sanctity.

Disgust is not just a moral emotion but an aesthetic one too. The Greek word “aisthesis” means “sensation” and “aesthetikos” “pertaining to sense perception”, prompting the question whether many of our moral judgements are not actually aesthetic ones.

And just because something disgusts, angers or pleases me, should I therefore make moral judgement or enshrine it in law? Or because I find something wholesome, fair or harmless, should I make it law for everybody or prevent a law from being made about it?

Our emotions and gut-feelings (=intuitions) are powerful drivers of behaviour and judgement. They should not be left unscrutinised. Aesthetic and moral conflicts (all carrying legal consequences) play out in our parliaments and media on issues like access to justice, taxation, immigration, freedom of speech or social benefits, with right, left and centre parties accusing each other of living in different worlds. This fundamental claim (“different worlds”) seems to hold water, according to research:

  • Gerd Gigerenzer: Gut Feelings, 2008
  • George Lakoff: Moral Politics. How Conservatives and Liberals think, 2001
  • George Lakoff: Don’t Think of an Elephant: Know Your Values and Frame the Debate, 2004
  • Jonathan Haidt: The Righteous Mind: Why Good People Are Divided by Politics and Religion, 2012
  • John Hibbing Predisposed. Liberals, Conservatives and the Biology of Political Differences, 2013

The important question is then how to foster mutual understanding and cooperation instead of further entrenching our differences and nurture divisions.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

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