Common sense is a tricky concept because what appears
to be so obvious at first glance, and hence, suitable to be termed
common sense, turns out to be based almost entirely on custom and
culture. It is obvious to me that the sun rises in the east and sets in
the west but accepting the accumulated knowledge of centuries, I accept
that in fact the earth rotates around the sun. I do not in my heart
believe that huge metal planes can fly and yet I frequently board them
in one place and disembark in another without a qualm. In personal
matters, the relativity of common sense becomes even clearer. It is
only recently in Western societies that the poor were considered to be
worthy of any thought at all. An infamous Victorian hymn sums up the
prevailing concept that the poor should accept their God-ordained
station in life. The first verse is relatively bland with “all things
bright and beautiful, all creatures great and small, all things wise
and wonderful, The Lord God made them all.” However, subsequent verses
make clear that, “The rich man in his castle, the poor man at his gate,
God made them, high or lowly, and ordered their estate.”. It is this
same acceptance of the status quo that not only allowed the slave trade
to flourish but even justified it with selective Biblical quotations.
In
many societies, even up to the present day, marriage was seen as a
formal arrangement between families to strengthen alliances and
consolidate wealth with no thought to personal choice or preferences.
The expectation that powerful and successful men would have multiple
sexual partners is not new and is even endorsed in the writings of the
oldest monotheistic religions of Judaism and Islam where concubines and
multiple wives are the norm. It is possible to base laws on “common
sense” but we should never pretend that this represents anything more
than reinforcing cultural norms.
This arrangement can work in
homogenous societies where the vast majority of citizens subscribe to
the same cultural and religious norms but in modern heterogeneous
societies, it is a recipe for conflict and injustice. In a world where
one person’s sacred writings are another’s creation of myths, it is hard
to justify a system of laws based on any particular set of sacred
writings. It is within this context that the idea of basing laws on
universal human rights emerged. At the core of this concept is the idea
that every life has the same value regardless of the person’s gender,
wealth or position in society. This does not replace religion as a
moral compass since every person will decide to base his or her own
choices on the basis of a religious or secular moral code. However, the
law will not discriminate positively or negatively for any particular
religious or moral code.
Sex and sexuality and gender issues in
general are major areas of controversy especially since many mainstream
religions officially espouse traditional views on these issues that are
out of step with modern practice. The Catholic Church and some others
hold that the sex must be for the purpose of procreation and hence
forbid (with very limited success) extramarital sex, contraception, anal
and oral sex, same sex relations and much more. The Church has a right
to propagate this belief and to try to persuade members of its
congregation to conform to its dogma but, it does not have a right to
enforce this dogma as law. There are many who would argue that although
sex is a biological imperative that can lead to pregnancy, procreation
is not its only function. Indeed, few sexual acts are performed for the
purpose of procreation and many are performed in such a way as to
minimize the likelihood of procreation. From a human rights
perspective, the only legal obligation is to ensure that sex is between
consenting adults and does not deliberately cause harm to those engaging
in it. Otherwise, sex would have to be forbidden for all persons who
cannot conceive – including men and women who are sterile or barren,
women past menopause, and pregnant women among others. Given the
overpopulation of the earth today, it is unlikely that we need to worry
about the human race dying out for lack of progeny.
Laws present
the outer limits to behaviour. Our individual moral and religious
compasses guide our individual choices. For our laws to be just and
fair to all, they cannot be based on the moral or religious compass of
any one group. Respect for universal human rights is therefore the only
option for modern heterogeneous societies. It is difficult for a
dominant religious caucus to recognize the limits of its authority but
common sense tells us that it is inevitable.
