Decriminalisation of Homosexuality in Singapore and the United Kingdom: A Comparative Analysis and Jurisprudential Implications

By Victor Sam and Zhong Rui Yang

UKSLSS Essay Competition 2025 Submission

Introduction

In Scott Hershovitz’s ‘The End of Jurisprudence’, he offers a solution to the ‘fly-bottle’ that is the Hart-Dworkin debate: that what many term ‘legal obligations’ are not their own class of obligations, but are simply a subset of moral obligations. [1] In examining the decriminalisation of homosexuality in the United Kingdom (UK) and Singapore, this essay will argue that Hershovitz’s position cannot stand, as some obligations imposed by the law are social, not moral in nature. This essay will then discuss the implications of this argument on the wider jurisprudential discussion.

History

The UK decriminalised sexual acts between men with the passing of the Sexual Offences Act 1967. [2] The Wolfenden Report, [3] published 10 years prior, contributed significantly to the passing of the act. The UK then legalised same-sex marriage in 2013. [4]

Singapore, on the other hand, decriminalised sexual acts between men through the repeal of S377A in 2022, [5] and has not legalised same-sex marriage.

Rationale

Having provided a brief overview of the evolution of the criminal law concerning homosexuality in the respective jurisdictions, this essay will proceed to examine the rationales behind the decriminalisation of homosexuality, and how they support or rebut Hershovitz’s central argument.

The UK's approach

It must be acknowledged that the UK’s approach largely endorses Hershovitz’s position, owing to the focus on morality regarding the criminalisation and subsequent decriminalisation of homosexuality. The Wolfenden Report explicitly acknowledges this, stating that laws must be ‘acceptable to the general moral sense of the community’ to facilitate effective enforcement measures, [6] reflecting a broadly moralistic approach towards criminalisation. This is further supported by a 2012 report on the legalisation of homosexual marriages by Parliament, which stated that preventing marriages on the basis of sexual orientation ‘simply cannot be right’. [7] This implies the existence of a moral right guiding the process of criminalisation, and that morally offensive portions of the criminal law should be repealed. Indeed, some proponents of the Sexual Offences Act 1967, which decriminalised homosexuality, argued that previous laws had been ‘anomalous and shameful injustice, which has done untold harm and has achieved no good whatever’. [8] Additionally, decriminalisation and liberalisation were, in large part, driven by the increasing moral acceptance of homosexuality by general society.

This lends credence to the notion that what the positivist-normative debate classifies as legal obligations are, in effect, moral obligations; there is no separate category of obligations that are, by virtue of common characteristics, purely legal. The moralistic implications of the arguments employed, particularly in the Wolfenden Report, which was key to decriminalisation, support Hershovitz’s argument that the law imposes purely moral obligations on its denizens.

Nevertheless, there also exist objections to Hershotvitz’s claims in the UK’s approach to homosexuality and the criminal law. For instance, the Wolfenden Report cites, in addition to moral objections, reasons adjacent to theology, sociology and psychology as ‘very relevant’ to the conclusions reached, [9] despite refusing to elaborate on them. This reflects a clear deference towards prevailing social facts, suggesting that at least some obligations imposed by the law are governed by sociological rather than moralistic considerations. Furthermore, the 2012 Parliament report touches on the issue of religious freedom, alluding to the idea that social obligations form at least part of those imposed by the law. [10]

Therefore, although the UK’s approach in this regard provides support for Hershovitz’s central thesis, it also detracts from it to some extent. This will become more apparent as this essay moves on to examine the Singaporean side of the equation.

Singapore's approach

Singapore’s approach to homosexuality and criminality differs radically from that of the United Kingdom. Singapore seems to lean more heavily on wider social reasons to justify decriminalisation. This is demonstrated in the enshrinement of conventional heterosexual marriage into the Singaporean constitution through Article 156, reaffirming a legally recognised marriage as ‘a union between a man and a woman’. [11] If the decisive factors behind the repeal of S377A had been largely moral, there would have been scant purpose in strengthening the heteronormative nature of legal marriages.

Furthermore, it was widely publicised that the Ministry of Home Affairs (MHA) engaged in dialogues with many interest groups comprising LGBT activists, religious organisations, as well as members of the general public. [12] This suggests that, unlike the unilateral investigative efforts deployed in compiling the Wolfenden Report, wider social concerns were a much more important consideration.

Additionally, it could be argued that the repeal of S377A was merely a natural and inevitable consequence of the declaration by the Attorney-General’s Chambers (AGC) in 2018 that S377A would not be proactively enforced, [13] rendering the law essentially defunct. The AGC’s declaration itself was, in turn, largely motivated by practical issues surrounding actually enforcing the law. None of this supports Hershovitz’s proposition that obligations generated by the law are purely moral in nature; there do not appear to be any moral upshots behind this series of events.

Nevertheless, there were likely some moral considerations behind the repeal of S377A; in Tan Boon Hock v Public Prosecutor, the High Court of Singapore found it ‘disquieting’ that consensual homosexual activity could be equated to an outrage of modesty. [14] This suggests that there were at least some moral obligations at play in the subsequent repeal of the law, however insignificant a role they may have played.

Taken as a whole, the Singaporean approach to the decriminalisation of homosexuality seems to push the narrative that at least some obligations imposed by the law are social obligations rather than moral ones, contradicting Hershovitz’s primary conclusion.

Analysis

Nevertheless, the approaches of the UK and Singapore at first glance do not immediately vitiate Hershovitz’s argument that legal obligations are a subset of moral obligations. It would be remiss to ignore the fact that many social obligations stem from moral obligations. However, there is a compelling case to be made that at least some social obligations are themselves independent and entirely divorced from moralistic considerations.

To illustrate that social obligations can be separate from moral obligations, some examples are helpful. If someone is invited to a dinner party, it is widely accepted social etiquette for them to bring a small gift, perhaps a bottle of wine. If they do not, one could describe their actions as socially obtuse, but it would be simply wrong to say their actions are immoral. It could be said that this person has a social obligation whose performance has no impact on their moral standing. This can be further illustrated by the example of a couple kissing in public. This could be seen as offensive by some social norms. We can say that this couple is violating their social duty or obligation to behave appropriately in public, but it would be inaccurate to say their actions have lowered their moral standing. There are numerous other examples where this concept applies. It would be ridiculous for one to think that every social obligation has moral implications.

Having established that not all social obligations stem from morality, Hershovitz’s argument appears rather close-minded. However, the purpose of this essay is not to refute Hershovitz’s argument. In fact, his way out of the ‘fly-bottle’, which is to reject the idea that legal obligation is its own distinctive domain, appears to be productive for the jurisprudential debate. The point then, is to highlight that whilst in jurisdictions which prioritise morality when imposing law, such as the UK, legal obligations may be a pure subset of moral obligations, but when looking further to Singapore or other jurisdictions, legal obligations can be a subset of moral obligations, social obligations, or even both. This distinction is important, as it allows for fuller discussion in the jurisprudential debate.

The implication of this distinction, however, raises an important question: aside from social obligations, what other forms of obligations, such as cultural or religious, can the law impose. Whilst this question is outside the scope of this essay, it is critical for the wider jurisprudential discussion to clarify the source of legal obligation by distinguishing and identifying the types of obligations which legal obligation can stem from.

Conclusion

Hershovitz proposes a way out of the ‘fly-bottle’ by rejecting a separate sect of obligations which are, by common characteristic, purely legal. This essay does not disagree with this conclusion, instead it argues that his characterisation of all legal obligations as purely moral ones is myopic at best by examining a subsection of the criminal law across two jurisdictions: the UK and Singapore. In so doing, this essay concludes that some legal obligations can be purely social obligations rather than moral ones. The question of whether other kinds of obligations constitute legal obligations is thus left open for further discussion.

References

[1] Scott Hershovitz, ‘The End of Jurisprudence’ (2015) 124 The Yale Law Journal.

[2] Sexual Offences Act 1967.

[3] Committee on Homosexual Offences and Prostitution, Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247, 1957).

[4] Marriage (Same Sex Couples) Act 2013.

[5] Penal Code (Amendment) Act 2022 (SG).

[6] Report of the Committee on Homosexual Offences and Prostitution (no 3) para 12.

[7] HM Government, Equal Marriage: The Government’s Response (Cm 8512, 2012) 4.

[8] Bailey, D. S. (1954). The Problem of Homosexuality. Church Information Board.

[9] Report of the Committee on Homosexual Offences and Prostitution (no 3).

[10] Equal Marriage: The Government’s Response (no 7).

[11] Constitution of the Republic of Singapore (as amended up to 2024) art 156.

[12] Ministry of Home Affairs, ‘Media Ǫueries on the Discussions on S377A and the Protect Singapore Townhall’ (24 July 2022) https://www.mha.gov.sg/mediaroom/speeches/media-queries-on-the-discussions-on-s377a-and-the-protect-singapore-townhall/ accessed 15 January 2026.

[13] Attorney-General’s Chambers Singapore, Government Has not Removed or Restricted Prosecutorial Discretion for Section 377A, Public Prosecutor Retains Full Prosecutorial Discretion (2 October 2018) para 6. 

[14] Tan Boon Hock v Public Prosecutor [1994] 2 SLR(R) 310.