Playing by the rules: The search for legal grounds in homosexuality cases – Indonesia, Lebanon, Egypt, Senegal

This chapter describes the search for legal grounds in cases of homosexuality in a comparative perspective (Senegal, Egypt, Lebanon, and Indonesia). The authors wonder how judges play by the rules when the law is silent. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges are looking for rules on which to ground their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. However, on the other hand, moral considerations seem to influence deeply the same judges’ legal cognition. The chapter examines how this unfolds in the concrete settings of four countries – Indonesia, Lebanon, Egypt, and Senegal – in cases related to male homosexuality. These countries offer in many respects an excellent basis for the comparative inquiry into the morality of legal cognition – Muslim-majority societies, public condemnations of homosexuality, civil-law inspired legal systems, sensitiveness to international discourse on the state of law, and human rights. In each of them, it analyzes cases that attracted much public and media attention. It observes in these cases how judges proceeded in situations in which there was no or only elusive rules to ground their rulings. Despite important differences, the cases exhibit striking similarities in the ways in which judges bypass gaps and silences in legislation via the selection of alternate rules that prove efficient in sanctioning morally associated aspects of the accused persons’ allegedly deviant behavior.