9 - Playing by the Rules: The Search for Legal Grounds in Homosexuality Cases – Indonesia, Lebanon, Egypt, and Senegal

Summary

We want to describe how judges play by, and with, legal rules. It appears that, on the one hand, even in cases in which the legal basis is thin or absent, judges seek rules on which to base their decisions. In that sense, judges are positivist legal practitioners who need legal rules to perform their professional duties. On the other hand, however, moral considerations seem to deeply influence the same judges’ legal cognition. We aim to show how this unfolds in the concrete settings of four countries – Indonesia, Lebanon, Egypt, and Senegal – in cases relating to male homosexuality. First, we outline the legal and judicial frameworks of the four countries being studied. Second, we concentrate on cases in these countries related to homosexuality. On the basis of these court cases, third, we analyze the reference to rules as the core of the life of law, although in a qualified manner. Finally, we draw together the main lines of the debate regarding rules, their indeterminacy and their interpretation, stressing the usefulness of a praxeological treatment centered on reasoning, justification, and decision-making practices to better understand the ways in which law lives through rules.