Dupret2020b

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Dupret2020b
BibType INCOLLECTION
Key dupret2020b
Author(s) Baudouin Dupret, Samer Ghamroun, Youmna Makhlouf, Marième N'Diaye, Ayang Utriza Yakin, Alexis Blouet
Title Playing by the Rules: The Search for Legal Grounds in Homosexuality Cases \textendash Indonesia, Lebanon, Egypt, Senegal
Editor(s) Baudouin Dupret, Julie Colemans, Max Travers
Tag(s) EMCA, Courtroom, Legal, Law, Ethnomethodology, Homosexuality, Sexuality, Senegal, Egypt, Lebanon, Indonesia, Judges, Muslim, Comparative
Publisher Routledge
Year 2020
Language
City
Month dec
Journal
Volume
Number
Pages 255–282
URL
DOI 10.4324/9781003046776-16
ISBN 978-1-00-304677-6
Organization
Institution
School
Type
Edition
Series
Howpublished
Book title Legal Rules in Practice: In the Midst of Law's Life
Chapter

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Abstract

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.

Notes