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N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE

NALSAR UNIVERSITY OF LAW, HYDERABAD

N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE
N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE
N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE

LAW AND JUSTICE IN GLOBALIZING WORLD

N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE

Research Paper on

TECHNOLOGICAL ADVANCEMENTS AND CHALLENGES TO THE LEGAL SYSTEM

Submitted by

Archana S Kumar Roll No: 59

I Sem, LL.M

N ALSAR U NIVERSITY O F L AW , H YDERABAD L AW AND J USTICE
CONTENTS Acknowledgement List of Authorities I. Introduction a. Factual Matrix b. Types of Legal Dilemma c.

CONTENTS

CONTENTS Acknowledgement List of Authorities I. Introduction a. Factual Matrix b. Types of Legal Dilemma c.

Acknowledgement

List of Authorities

I.

Introduction

  • a. Factual Matrix

  • b. Types of Legal Dilemma

  • c. Timing of Legal Intervention

II.

Significance of Legal Philosophies

  • a. Kant’s Formula of Universal Law

  • b. Law Principle of Utility

  • c. Hart’s view

  • d. Continental jurist

III.

Issues with relation to the Assisted Reproductive Technology

  • a. Philosophical Analysis

  • b. Criticisms

IV.

Issues with relation to status of homo-sexual couple

  • a. Philosophical Analysis

V.

Conclusion

Acknowledgement

I express my sincere gratitude to our faculty for Law and Justice in Globalizing World, Dr. Aruna B. Venkat, for her support and guidance without which this would not have been completed.

I also like to use this opportunity state that this work has been done with all sincere and earnest work from my humble part.

Yours faithfully Archana. S.Kumar Roll no: 59 I year LL.M.

I NDEX OF A UTHORITIES [ B OOKS R EFERRED ] 1. Sharon Byrd and Joachim

INDEX OF AUTHORITIES

I NDEX OF A UTHORITIES [ B OOKS R EFERRED ] 1. Sharon Byrd and Joachim

[BOOKS REFERRED]

  • 1. Sharon Byrd and Joachim Hruschka, Kant's Doctrine of Right: A Commentary(Cambridge UP, 2010)

  • 2. Stephen Offei , Basic Jurisprudence and Legal Philosophy (Institute of Justice and Applied Legal Studies, The University of the South Pacific, 1998)

  • 3. Martin P. Golding, Legal Reasoning, Legal Theory and Rights(Ashgate Publishing Company, USA, 2007)

  • 4. R.W.M. Dias, Jurisprudence (Butterworths , London, 1976)

  • 5. M.D.A.Freeman, Lloyd‟s Introduction to Jurisprudence, (Sweet & Maxwell Ltd. , London, 1994)

[ARTICLES]

  • 1. George P. Smith ,Australia's frozen 'Orphan' embryos: A medical, legal and ethical dilemma, 1I 24 Journal of Family Law. 27 (1985-1986)

  • 2. Christine M Korsgaard , Kant's formula of universal law. , Pacific Philosophical Quarterly 66, no. 1-2 (1985)

  • 3. Shirley Darby Howel, The Frozen Embryo: Scholarly Theories, Case Law, and Proposed State Regulation, DePaul Journal of Health Care ,Vol. 14.3:407, (2013)

  • 4. Oduncu FS, Stem Cell Research in Germany Ethics of Healing vs. Human Dignity, Med Health Care and Philosophy, Volume 6, (March, 2013)

5.

Lawrence P. Wilkins, Introduction:The Ability of the Current Legal Framework to Address Advances in Technology, 33 Ind. L. Rev. 1 (1999-2000)

  • 6. Kimball P. Marshall, Has Technology Introduced New Ethical Problems?, Journal of Business Ethics, Vol. 19, No. 1, Fourth Annual International Conference Promoting Business Ethics (March, 1999)

  • 7. William N.

Eskridge, Jr., A History of Same Sex Marriage, Faculty Scholarship Series. Paper

1504. Yale Law School Faculty Scholarship,(1993)

  • 8. Lyria Bennett Moses, Why Have a Theory of Law and Technological Change? , Minnesota Journal of Law, Science & Technology (2007)

  • 9. Lara Denis, Abortion and Kant’s Formula of Universal Law, Canadian Journal of Philosophy 547 Volume 37, Number 4 (December, 2007)

10. Helga Varden, A Kantian Conception of Rightful Sexual Relations:Sex, (Gay) Marriage, and Prostitution, Social Philosophy Today, Volume 22 (2006)

[LIST OF CASES]

  • 1. Davis v. Davis, No. E-14496, 1989 WL 140495B.

  • 2. Naz Foundation vs Government of NCT Of Delhi , 2010 CriLJ 94

[WEB RESOURCES]

1)

www.jstor.org

2)

http://www.academia.edu/

3)

http://plato.stanford.edu/

4)

www.justiceharvard.org/

Technological advancements and Challenges to the Legal System

I.

Introduction

Society and Legal system are always in a symbiotic relationship. Each contributes and influences the growth of the other. Hence, when one entity moves ahead and other has to „keep up‟ to avoid a deadlock or rather stagnation. We know, the twentieth century has witnessed an exponential development in the field of science which had directly influenced almost all facets of life. In matter of few decades, the way of life had rapidly changed. But the question is whether the legal system is accommodating such changes or is there a lag between the real life issues and judicial response to them. Equally important is the approach in reaching the solution to the evolving issue.

The aim of this research paper is to compile the theoretical formulations guiding the legal development or reallocation and analyze certain recent technological developments and related legal issues and response of the judiciary towards it.

The doctrinal method of research is adopted for the research paper.

The main reliance

is made

on the

theories of

philosophical analysis.

Immanuel Kant and Jeremy Bentham for the

Factual Matrix

As discussed, Courts are increasingly faced with litigation that presents complex issues of science

and technology. In an address to the February 1998 AAAS Annual Meeting, Associate Justice Stephen Breyer of the U.S. Supreme Court observed that “the law increasingly requires access to sound science….because society is becoming more dependent for its well-being on scientifically complex technology,…This technology underlies legal issues of importance to all of us." The

consequences of cases, that were profoundly affected by the presence of highly technical considerations, have also grown due to the high stakes involved, often financial as in intellectual

1

property cases .

An illustrative instance of the novel challenges before judiciary can be seen in Australia‟s frozen „orphan‟ embryos. The facts of the case is that a Los Angeles coupler consented for an in vitro fertilization program of Melbourne hospital and allowed a local, anonymous donor from Melbourne to artificially inseminate three eggs from wife; one was implanted and the other two were frozen for possible use in the future. However, subsequently there was a miscarriage and wife was not emotionally stable enough at that time to undertake further implantations. Later the couple expired in a plane crash. They had not executed any will before death and no contract was executed prior to IVF process. Thus an issue arose as to the legal rights of two frozen embryos as to whether they have right to live and be implanted in a surrogate mother, and, when and if they are born, assert inheritance rights in the father‟s estate 2 .

Thus new technology can give rise to new uncertainties to which there are no clear answers. In other situations, a legal rule might provide the answer, but this is considered unsatisfactory due to problems of over-inclusiveness, under-inclusiveness, or obsolescence. In these situations, uncertainty might result from concern that the rule will be changed prospectively by a legislature or agency, or retrospectively by courts. In such circumstances, it is judge‟s role to determine whether the legal system validates or disapprove a particular new social arrangement resulted by technological development.

Types of Legal Dilemma

The technological development can lead to three types of legal dilemmas

1)

Need for extension of existing norms

2)

Need for creation of new norms

3)

New norm in conflict with existing norms

The first category will not be a much of dilemma but a call for judicial interpretation or legislative amendments. As it is an extension of the existing norms, the well-settled underlying principles will ensure a smooth transition and gradual adoption. For instance, the changes to evidence law to incorporate the digital technology.

2 George P. Smith ,Australia's frozen 'Orphan' embryos: A medical, legal and ethical dilemma, 1I 24 J. Fam. L. 27 1985-1986 at p.26

The creation of new norm is however cumbersome. Though active judiciary have attempted to fill the gaps, the legislative backing is utmost importance. The legislative endorsement not only reflects the consent of the majority to confirm to it, but also provide the legal framework for its definition and protection. The whole regime of Intellectual property right is the best illustration in this aspect. The case of right of frozen embryos as discussed above is another example.

The third category is the most difficult situation. The norms might have already had a deep rooted influence on the society. The whole social arrangements have been already aligned in accordance with it. Hence when a norm evolve due to technological advancement challenging the existing, or making it obsolute,the legal system is heavily burdened to strike a perfect balance between the changing facts, social consensus, new question of ethics and morality and a seamless transformation from the existing. For instance, the understanding of homosexuality or development of narco analysis as to right against self incrimination.

In the light of the above, it is clear that there is a need for some ground rules and guidelines for guiding the legal system. It may not be providing a straightjacket solution, but can act as a lamp to tread the unknown waters.

Timing of Legal Intervention

Now a main question arises as to what should be the point of time for the intervention. It is true that law need not intervene at the very point of conception of idea, for it may take ages to actually put the idea into practice and any issue to arise out of it. Sometimes, the idea may not even materialize. However, with the advent of Intellectual Property Law, our legal system is extending its protection right from the external manifestation of ideas.

With regard to the legal problems, it is also true that not every technology will raise legal dilemmas as mentioned above. But it shall also be needed to be noted that as technology changes, new entities, activities, and relationships come into being, there is a potential for issues to arise. In that light, the above classification scheme has several useful functions. Understanding the ways in which legal rules fail to achieve their purposes in the face of technological change can assist in improving techniques of legislative drafting. It shall also help in early intervention in the form of a reform of legal system to fit in the new development. This can help in reducing the friction , if any, and easy diffusion of the new norms. It can also assist in reducing over emphasis of such frictions.

Thus the earlier the intervention could be, the better will be for the orderly society. However, as all issues cannot be foreseen and further if there is no consensus as to a common solution, a subjective approach shall be helpful.

II.

Significance of Legal Philosophies

Unlike the legal rules, either through statutory principles or established norms which mostly speaks about what law is, the legal philosophies often have a wider connotation as they speak about what law ought to be. The latter is in a more objective, wider and universal in application. Hence they could aid while there is a lacuna or inconsistency in the legal rules. It is in this light the study of legal philosophies attains its significance. They may not directly dealing with a problem of the present, but the reasoning utilized can be guiding light in deducing a solution. For instance, Aristotle, for sure, would not have dealt with the issues of cyber stalking or Facebook data mining. However, his view on extent and scope of right to privacy will help us in deciding the issue. Similarly, while bringing about a regulation on recently evolved norm, Rawls distributive justice or crux of the veil of ignorance could be utilized, though he may have crystallized the principles keeping in mind of „original position‟.

Among the theories, the most significant guideline for unpredictable , unforeseeable issue can be found in the writings of eminent jurist, Emmanuel Kant. He tried to differentiate law from emotion as the latter will be temparent, subjective and arbitrary. He argued that law should evolve from reason. His philosophy could be termed A priori method. His formula of Universal Law would be an important tools for resolving the legal dilemmas as discussed above.

Kant’s Formula of Universal Law

Kant's first formulation of the Categorical Imperative, the Formula of Universal Law, states that one should act only according to that maxim by which you can at the same time will that it should become a universal law.

Kant specifies that the test is whether you could will the universalization for a system of nature "of which you yourself were a part" and in other words, he characterizes the moral agent as asking "what sort of world he would create under the guidance of practical reason, a world into which, moreover, he would place himself as a member. Since it is a result of practical reason, all should reach the same

conclusions as to solution to the question of duty. It is not a case that your will is subjective to the individual tastes or temperament or desire. In fact, the basic question of what is the limitation of will boils down to what you can will without contradiction.

According to Kant, willing universalized maxims may give rise to contradictions in two ways: Some actions are of such a nature that their maxim cannot even be thought as a universal law of nature without contradiction, far from it being possible that one could will that it should be such. In others this internal impossibility is not found, though it is still impossible to will that their maxim should be raised to the universality of a law of nature, because such a will would contradict itself. We easily see that the former maxim conflicts with the stricter or narrower (imprescriptible) duty, the latter with broader (meritorious) duty. The first sort of contradiction is usually called a contradiction in conception, and the second a contradiction in the will 3 .

Hence when a jurist or legislator find himself in tricky position of formulating a new norm or modify or reverse the existing norm, he should not give away to passion or emotion , but strictly

guided by the reason alone. He could test his formulations based of Kant‟s test for contradiction in

conception or contradiction in the will. If it withstands all these tests, then it could be adopted well into the legal system. Due to the advancement of technology itself , the speed of diffusion of

information and know-who is fast, so is the legal principles. In fact, comparative legal study have become the norm of the day. Hence the jurist or legislator should be aware of their formulations.

Also, Kant considers individual‟s innate right to freedom as relational concept of justice. The innate or inherent right to freedom can be defined as independence from being constrained by another‟s choice insofar as the choice can coexist with the freedom of every other in accordance with a universal law. It is relative that it envisages justice as arising only amongst interacting persons, and it understands the rightfulness of their interactions as consisting in the relation established between them when they interact. According to Kant, the inherent right of freedom will be respected only if the person acts or pursues the end in accordance with universal law and not subject to arbitrary personal choice of other.

As per Kant‟s perspective, being subjected to another‟s arbitrary choice is equivalent to enslavement. But it usually applies only to such wrongful subjection arising out of another „s arbitrary choice. On

3 Korsgaard, Christine M. Kant's formula of universal law. Pacific Philosophical Quarterly 66, 1985, no. 1-2: 24-47.

the contrary, rightful restrictions are universal restrictions. Such rightful restrictions will not be contingent and applies symmetrically to all interacting persons.

Therefore, Kant‟s conception of justice is inherently relational in that it characterizes political freedom as the absence of arbitrary imposition of might amongst interacting persons by demanding that interacting persons are constrained only by universal restrictions. Hence when a law is made to restrict one‟s activity, it shall satisfy the attributes of universal restriction. It has to be independent and should have symmetrical application.

Principle of Utility

Both the proponent of Utilitarianism , Jeremy Bentham and John Stuart Mill, have teleological perspective of justice, i.e., consequence of any act need to be looked into. According to the Bentham‟s principle of utility, an act is just if it purports to have utility. It refers to the measuring of any action for their utility. If any act could augment pleasure or reduce pain, it can be said that the act has a utility. When a social act is taken, it can be justified only if it has utility for community. It will be sum total of interest of individual in the community. Hence the pleasure of majority could justify the act even if minority expresses it displeasure or has to suffer pain.

Hence when a new norm arises, any law or restriction could be tested for their utility. Once it satisfies majority test for their consequence, means for such consequence will not be that relevant.

Hart on Judicial Reasoning

According to Hart, there is words possess an “open texture”. There is a penumbral area of doubt as to their meaning. Hence a mere logical deduction of general rules and application to particular cases will not be serve as an ideal model. For Hart, the misconception of the judicial process as consisting pre-eminently in deductive reasoning is often stigmatized as the error of „formalism‟ or „literalism‟. It should be rather based on rational considerations of premises.

Prof. Neil MacCormick suggested two factors in particular that may be considered by a judge when justifying his decision which are as follows:

2)

Broader consequences of the decision to potential litigants, the legal system and indeed role of law in society.

The judge then asks whether these consequences will be acceptable in terms of justice or common sense 4 . We can draw similarity between these arguments and Kant‟s formula of Universal Law.

Perspective of Continental jurist

According to Savigny, law is a manifestation of the Volksgeist, the spirits of the people, so that it alters with the development of this spirit. Of its very nature such a process is bound to be slow. Although he did not oppose conscious effort of legal reform, he preached that this should always follow the Volkgeist. However, he never explains as to how such spirit of people could be ascertained. Ehrlich attempted to further explain the issue by distinguishing between „formal law‟

and „living law‟. The former is represented by laws in statutes, precedents and books, latter by these actually work in social life. However the concept of living law could be soothing only if it is within

existing legal framework. Any galvanizing or radical changes that alter the system itself cannot be reconciled easily.

Henry Maine’s theory of machinery of change

Sir Henry Maine propounded the classic theory that the “progressive societies develop beyond the point at which “static societies” stop through the use of fiction , equity and finally legislation. Fiction

is defined as any assumption which conceals, affects to conceal, the fact that a rule of law has undergone alterations, its letter remaining unchanged, its operation being modified. It is not shift in the meaning of the word. Equity is a search beyond the strict interpretations of law. Maine defined it as any body of rules existing by the side of original civil law, founded on distinct principles and claiming to incidently supercede the civil law in virtue of superior sanctity inherent in those

principles. These two may not be able to keep the change in rein which eventually results in legislation. This may be later followed by law reform.

4 As quoted in Stephen Offei , Basic Jurisprudence and Legal Philosophy,Institute of Justice and Applied Legal Studies, The University of the South Pacific, 1998 at p.212

These discussions may seem very abstract in theory. Hence let us move onto some practical examples of legal dilemmas faced in the past decades and analyze how they were resolved or attempted to be resolved.

III.

Issues with relation to the Assisted Reproductive Technology

As discussed in the initial page, the development of medical science in the field of Assisted Reproductive Technology(ART in short),during the last century was outstanding. It has taken science to a level which would not have been even dreamt of hundred years ago. So has it given rise to some legal problems which were not anticipated either.

It is a good example as to how some legal categories and concepts become ambiguous in light of technological change. Consider the example of “mother.” Prior to the use of in vitro fertilization, a mother (other than in cases of adoption) was the woman who bore a child and contributed to its genetic identity. Following the introduction of in vitro fertilization, it became possible for the concept of “mother” to fragment into at least two people: the woman contributing an ovum, and the woman gestating and delivering the child. Thus a legal rule giving custody of a child to its “mother,” without further definition, becomes uncertain.

Another instance is the above mentioned frozen embryo case. While the conception of embryo in laboratory was invention of modern science, our legal system was not prepared for a legal framework for such arrangement. The Law had never contemplated existence of an embryo in a petri dish ,outside the womb of its natural mother and could be implanted in another womb. Hence arises the very basic question as to the status of „frozen embryo‟. Whether it can be considered as a person or a property.

As per the recent scientific studies, it is revealed that Fertilization is the origin of a human life. Recent evidence has confirmed the an early embryo is quite distinct from a simple cell, it usually reflects a rapid activation of genetic information from the parents, and a sense of „polarity‟ is present. Differentiation does, of course, progressively occur in the course of development, which is a part of the changes that occurs even after the birth. Thus earlier presumption of „life‟ after birth, or which later modified to „time of first heart beat‟ becomes obsolete. It is true that the fertilized egg and early embryo lack the ability to interact, be conscious, have experiences, or be sentient-the usual

attributes of persons or rights-bearing entities. Genetic uniqueness, life, humanness, and the potential to develop later attributes count for all.

The legal implications of the same could be seen in the submission by the Bishops of England and Wales to the Science and Technology Committee:

If the human embryo is the same individual as the older human being, this has immediate moral implications. There is no such thing as a „subhuman human‟: a human being/organism with subhuman moral status. Human status is not something we have to „earn‟ by reaching some arbitrary level of functional ability. If fertilisation is, in the normal case, the origin of a new human individual a life distinct from the parents that individual will have rights and interests from fertilisation onward in regard to his or her well-being. They have rights and interests of which they are unaware, just as newborn babies do. These rights and interests should not be entirely subordinated to the interests, or perceived interests, or desires or wants, of adult human beings. 5

Professors Robert P. George and Christopher Tollefsen argue in their book, Embryo: A Defense of

Human Life, that the frozen embryo is nothing less than human life, albeit at its earliest stage.

According to George and Tollefsen, “[a] human embryo is not something different in kind from a

human being, like a rock, or a potato, or a rhinoceros. A human embryo is a whole living member of

the species Homo sapiens in the earliest stage of his or her natural development.” The views of George and Tollefsen largely mirror those of the Roman Catholic Church The Vatican‟s 1987 Instruction on Respect for Human Life in Its Origins and on the Dignity of Procreation articulates the Church‟s position that the embryo is fully human. The IVF regulations of Italy reflect the Vatican‟s position. Italian law permits the harvesting of no more than three eggs per IVF cycle. The three eggs must be implanted in the mother 6 .

Philosophical Analysis

The only possible topic to which analogy could be drawn with the present issue is the discussions about abortion. However, it should be kept in mind that there are certain factors unique to the problem of abortion. For instance, the danger to the life of the mother, Unwanted pregnancy as a rape etc, These are not applicable in case of a In-Vitro Fertilization.

5 Human Reproductive Technologies and the Law: A Joint Submission to the Science and Technology Committee inquiry by the Catholic Bishops’ Conference of England and Wales and the Linacre Centre for Healthcare Ethics ,June 2004 6 SHIRLEY DARBY HOWEL, The Frozen Embryo: Scholarly Theories, Case Law, and Proposed State Regulation, DePaul Journal of Health Care (Vol. 14.3:407),2013

As discussed earlier, Kant‟s Formulae of Universal Law can be treated as primary repository of

reason. Universalization test promise a relatively clear and straightforward way to discern the morality of actions. Interestingly, it will ease one‟s task of locating the duty among myriad of theories. In fact, it is relevant when the search is for un existing.

Accordingly, if we are willing that the embryos are just property, then there is a inherent contradiction as to the point of transformation to person because the medical science provides empirical proof as to seamless transformation ( and not in parts)of a single cell organism to fully- developed adult capable of reason. Even otherwise, in order to consider as property, it should have some inherent „economic value‟, which is impossible to make. However, in cases like In-vitro Fertilization, there is a break in the process. It is not the break of growth, but a break in the opportunity to grow. Also, the test of „reason‟ cannot be applied. So again we cannot equate it with that of a person. Hence both could not be considered as a categorical imperative. Hence, essentially a mid-ground shall be taken, the embryos could be treated as persons „with part-rights‟ primarily the right to opportunity of growth, which in corollary gives the right to be not harmed. Now, this part- right would pave way to full rights once it evolves out to fully developed foetus as conceptualized in the customary rights who may even have property rights and other civil rights. This formulation could be in fact universally applied.

Now let us analyze the issues as to use of embryos for experimentation in light of Kantian principle of humanity. According to Kant, human dignity forbids and even condemns instrumentalization and reduction of a human being to a mere means and object. Human beings are persons and as such they are ends in themselves. The mere membership of humanity creates and preserves the fundamental value of human dignity until death. Since the living human embryo is the very first concrete and individual agent in human development, it must be regarded as the carrier of implicit and unconditional values 7 . Hence it would not be supporting the embryonic experimentations. Further if we analyse the concept of giving away of unsused eggs for adoption, we can find justifications in the Kantian theory as it will be promoting any means that could realize human dignity.

7 Oduncu FS, Stem Cell Research in Germany Ethics of Healing vs. Human Dignity, Med Health Care and Philosophy, March 2003, Volume 6, Issue 1, pp 5-16

Even as per Jeremy Bentham‟s theory of Utilitarianism, the preservation of rights of embryos would be justified owing to its potential of growing up to a fruitful human being and could augment the happiness of many. Similarly the utilitarian principle would be supporting the adoption of the unused eggs. However, with regard to scientific experimentation, the utilitarian view would be divergent from the Kantian principle. If such experimentations are benefiting humanity in general, then it could be justified.

The facts of the above mentioned Australian orphan embryos were concluded in similar manner. A legislative affirmation was provided to give an opportunity for surrogate birth and if the child is eventually born, it shall be given for abortion.

Similar is the case of Davis v. Davis 8 which involved dispute between a divorced husband and wife over what would be done with their cryo-preserved embryos. The law could potentially treat cryo- preserved embryos as children, whose custody would be determined in the best interests of the child, or as property, in which case they would be jointly owned by parties. Trial court Judge W. Dale Young found that “human life begin the moment of conception” and that the best interests of the child would served by granting custody of the embryos to Mrs. Davis. The Davis was appealed to the Court of Appeals of Tennessee, which held that the trial court‟s decision violated the reproductive rights of Mr. Davis, and ordered the parties be given joint control over the embryos. On appeal from decision, the Tennessee Supreme Court struck a middle ground between the two positions. Embryos were neither persons nor property, but were requiring “special respect because of their potential for human life.”

Criticisms

However, there are certain criticisms to this proposition as it will question the use of preventive pills or intra uterine implantations which effectively prevent the fertilized egg from attaching to the uterine wall, thus violating the part-human rights of embryo. There is a lacuna in present abortion law which considers only from the point of attachment of zygote to the uterine wall.

8 Davis v. Davis, No. E-14496, 1989 WL 140495, at *1 (Tenn. Cir. Ct. Sept. 21, 1989).

IV.

Issues with relation to status of homo-sexual couples

The history of homo-sexual couples, or partners belonging to the same gender, has always been ambiguous area. There has been rollercoaster of attitude towards the institution. The ethical and religious proponent of medieval epoch tried to color it as unnatural arrangement. They felt that it is against the heterosexual model of the simplest unit of population, „family‟ which is accepted to be the norm of the nature. In fact the linguistic constrain on definition of the concept of family is reflected in all other systems as well. One factor that can be routed towards the issue is the principle of understanding sole purpose of a conjugal relationship as procreation. Hence, any other association was considered to be against the law of nature.

However, with the advancement of medical and psychological science, human nature is presently understood in a better way. It has been identified that sexual preferences are inherent in human nature and not a aberration. In fact it was seen that any external compulsion to reverse the inherent characteristic of a person is nothing but violation of his personal liberty. Thus , this evolution of

science and technology has made the earlier distinction of „natural‟ and „unnatural‟ obsoltute and

contradicting. However, our legal system has not yet evolved to imbibe such novel understanding and hence results in conflict. For instance S. 377 of Indian Penal Code considers a consensual sexual

act between homo-sexual couples unnatural and illegal.

Philosophical Analysis

If we attempt to analyze the Kant‟s analysis of homosexuality, we can see that he had made distinction between natural and unnatural sexual union. While former is explained as one by which procreation of a being of the same kind is possible, the latter is with a person of the same sex. Since such transgression of laws, called unnatural, do wrong to humanity in our own person, there are no limitations or exceptions whatsoever that can save them from being repudiated completely 9 .

However, as discussed earlier , in light of the developments of the science, the distinction of natural and unnatural sexual union becomes obsolete as it is empirically proved that homo-sexual preference is also in accordance with natural law. Hence applying , Kant‟s own formulae of universal law, the homo-sexual arrangements could be allowed. Further the inherent right of a person is not in conflict

9 B. Sharon Byrd and Joachim Hruschka, Kant's Doctrine of Right: A Commentary, Cambridge UP, 2010

with any other‟s choice of action. It should not be subjected to another‟s arbitrary choice, but is in

accordance with the universal law.

The point to be kept in mind is that these principles are applicable in case of consensual acts. If not,

it is in fact subjection to another‟s arbitrary choice and not permissible.

If we analyze in a utilitarian point of view, in the light new scientific studies, the sense of immorality of the society towards the homo-sexual couples will vaporize, so is discomfort or pain attached therewith, resulting in increase in the utility of the arrangement. Further, social recogonition will also augment the pleasure of such homo-sexual couples and their family. This all add upto the utility of community. Hence any law supporting such arrangement could be justified even if it is conflict with existing laws.

The case of Naz Foundation vs Government of NCT Of Delhi 10 have in fact decriminalized the Section 377 to the extent of consensual sexual relationship between homosexual relationship. Though court has not explicitly dealt with the above mentioned aspect, we can see that identification of right to privacy of the homo-sexual couples is impliedly justifying the legality of relationship. The starting point is set and what awaits the future is the trajectory of this movement.

V.

Conclusion

In light of the above discussion, we can see that judiciary has attempted to fill in the vacuum created by the new technology by analyzing the possible outcomes in a multi dimensional aspect. They were tested for objectivity and universality as it was understand that a case or two will not be the end of confusion. Due to the rapid diffusion of the technology across the globe, there will be equally fast spreading of legal issues associated to it. Hence when the solution is sought, jurist should keep in mind its far reaching consequences.

In spite of all this, we need to understand that no one is infalliable. The answers of law are never the „right answers‟ , but rather the choice is for „better answers‟. Ulitmately the law-making or dispute resolution satisfies the need of society for a peaceful and predictable legal system and that promotes

society‟s values ,whatever they are or will be. Hence, the descisions shall be reasonable even if not

fully correct.

10 2010 CriLJ 94

To conclude, the philosophers of the past and the philosophies of the present and predicaments of the future shall be the guidelines for any jurist or legislature and any dilemmas shall be filtered through these spectrum.