A group of Oxford students are petitioning to have John Finnis, emeritus professor of law and legal philosophy, 'removed from his academic position' on account of his 'discriminatory views against many groups of disadvantaged people'. In his published writings, Finnis has claimed that gay sex is an 'immoral sexual act' akin to bestiality, that being gay should count ‘at least as a negative factor, if not a disqualification’ for adopting children, and that governments should 'discourage' citizens from homosexuality.
The petition has its problems. It asks that Finnis be removed from a position he does not hold, and claims that the classes he teaches are mandatory, which they are not. These errors are unfortunate, not least because stories about Oxford get more attention than they deserve. (The Today programme covered it twice and it was in all the major newspapers and alt-right outlets.) The petition plays into the hands of those who love to moan about slipping university standards and political correctness gone mad. ‘I cannot believe the rot in @UniofOxford is so deep,’ one former student tweeted. (The petition has fewer than 600 signatures.) The students’ political strategy is also questionable. Why expect a deeply conservative institution to do the work for you? Why not organise a boycott instead? You can’t teach a seminar to an empty room.
The petition makes no mention of academic freedom. Oxford guarantees its staff ‘freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions’. Instead, the students appeal to the university's equality and harassment policies, which commit Oxford to fostering an 'inclusive culture that promotes equality'. It is indeed hard to see how Finnis's abhorrent opinions contribute to such a culture.
But are his views, many of which are orthodoxies of his Roman Catholic faith, themselves acts of discrimination? It's a difficult question. Many legal and political philosophers, including some who have rushed to Finnis’s defence, argue elsewhere that speech can be discriminatory: ‘hate speech’ is the exemplar. Even so, it is not at all clear that Finnis’s speech rises (or sinks) to this level, or that considerations of academic freedom should not matter more. Gay students perhaps ought to tolerate Finnis and his views, not out of a liberal belief in the ‘marketplace of ideas’, but because the alternative is worse: that those in power will use a dilution of academic freedom to make sure that queer people, and trans people, women and people of colour, don’t get to speak at all.
Prominent legal and political theorists, including Jeremy Waldron, Cass Sunstein and John Tasioulas, have called Finnis a 'legal giant', invoked his right to academic freedom, and insisted that the best thing for students to do is engage with his views. 'It’s only respectful, and they may even learn something,' Tasioulas said.
Reading Finnis's articles on homosexuality, I learn that he thinks that gay sex is 'morally wrong' for the same reason that he thinks all extra-marital sex, including masturbation, is: that it is 'incompatible' with the intrinsic human good of marriage. Humans are conjugal animals, their nature and the common good 'actualised' only in marriage; sex – Finnis prefers the term 'marital intercourse' – is OK insofar as it serves the marital good.
Finnis has recognised that his conclusions also apply to the 'free-wheeling heterosexual lifestyle', but his eye tends to settle on the gays. Asked on Radio 4 last week if he had ‘hatred for gay people’, Finnis replied: 'Absolutely not ... I have friends, and my family have friends, we benefit from them, they are good people, hatred is just not on the scene.’ This is hard to square with what Finnis must know would follow if the people to whom his articles are directed – citizens, legislators, judges – were persuaded of his claims. Hatred might not come into it for Finnis, but there is little doubt that hating, disliking, maligning gay people – and creating the conditions under which gay people come to loathe themselves – follow from his proposals.
In 2017, Finnis was called on to respond to claims that his former student Neil Gorsuch, then a nominee for the US Supreme Court, had plagiarised other scholars in a book. Finnis defended Gorsuch on the grounds that his ‘writing and citing was easily and well within the proper and accepted standards of scholarly research and writing in the field of study in which he and I work’. But as Finnis’s colleague Les Green pointed out at the time, ‘if by “the field of study in which [Gorsuch] and I work” Professor Finnis means university research in law or legal philosophy, then his claim is unfounded.’
We should be mindful of the way the current narrative is playing out: the gentle, humble scholar defending himself against the witch-hunt of the student mob. The Gorsuch episode suggests that, like the students who would see him dethroned, Finnis is engaged in politics, and wants to create a world more congenial to his views. And sometimes his side wins: Gorsuch, until he retires or dies, will sit on the US Supreme Court.
Finnis and I are fellows of the same Oxford college. At my first dinner there – to welcome new fellows and their partners – we were greeted warmly by another guest and introduced ourselves. ‘You’ve already ruffled a few feathers around here!’ she said, eyebrows raised. She looked at my partner, a woman, and grinned. I’ve encountered Finnis in the common room, but he has never said a word to me. The obvious inference keeps suggesting itself. Is it a bad one? Quite possibly. Do the masturbators and the adulterers worry like this, too?
As I read Finnis's essays, I think about what it would have been like to read them as an undergraduate, or a graduate student, carrying for a time the shame that Finnis thinks only proper. I think then, as now, I would have been amused (how often do you find the word ‘homosexualist’ used so solemnly?). But I wonder, too, what it would have been like to sit across from a whip-smart mind, at a time when my own was barely formed, and be told the ‘fact’ that ‘all three of the greatest Greek philosophers, Socrates, Plato and Aristotle, regarded homosexual conduct as intrinsically shameful, immoral and indeed depraved and depraving.’ I like to think I would have questioned why a lawyer was attributing claims solely on the basis of invented speech. Perhaps now I would counter his canon with my own, from Sappho to Audre Lorde ('And I knew when I entered her I was / high wind in her forests hollow'). Academic freedom is a principle worth defending, but it is foolish to ignore its costs, and who (disproportionately, quietly) bears them.
When I read my straight colleagues telling everyone else to give Finnis the 'respect' of engaging with his opinions, to 'make arguments' in response, I wonder how many times they have had to 'make the argument' for their happiness, for their home and their partner, for the life they've built with the people they love. At times, I'm not even sure what I am meant to be making the argument for. It does not matter if my gayness was innate or chosen, it is so deeply a part of me, such a root cause of any fulfilment that I feel and any good that I do, that it becomes clear that what really follows from Finnis's view is that I should stop existing as me. I should retreat into some other Sophie, who lives without the woman who makes her a better teacher, listener, thinker. Finnis thinks my good would be actualised in an unhappy marriage with a man. But almost everything I know about the virtues, I learned from my experiences as a gay woman: courage, constancy, generosity, love. I can engage, certainly, I can make arguments in response, but there is also a sense, at a deeper level, in which there is nothing I can say.