Thus, on this very ground, much has been written in defence of homosexuality, by men whose knowledge of individuals and society was profound and far-reaching. Karl Heinrich Ulricbs, a deeply learned German jurist, openly advocated it as neither the result of willful depravity, hereditary disease, nor subversive of either individual or communal rights. The abnormal instinct being, so to speak, normal to the individual, an idea followed out in my section devoted to the subject of male homosexuality, and the man or woman inspired by it being neither physically, intellectually, nor morally inferior to the heterosexually constituted individual, he considered the attitude of society, and of law, toward it as flagrantly unjust. He, very wisely, does not attempt to refute the utilitarian theory of jurisprudence, which regards law as a regulation of the majority for mutual protection; but starts with the indisputable juristic assumption that each human being is born with rights which legislation, except for very grave reasons, should not attempt to abridge.1 But such a system of reasoning, of which Ulricbs is by no means the sole representative, as regards homosexuality, would apply equally well to other forms of social vice; the free-lover, the faith-curist, the drunkard, the seducer, each justifying himself on the ground of individual right, and absence of conscientious scruples, being equally free to follow his particular course of conduct.
While I am willing to admit, in view of what I know as to the intimate nature of such anomalies, that homosexuality, especially in its congenital and somatic phases, appeals for a great degree of clemency, particularly to the well-informed anthropologist, it does not seem, at the present stage of human evolution, either wise or expedient to erase it from our statute-books; giving it thereby immunity from legal restraint and punishment. There is probably, however, no department of criminal law in which a closer cooperation between jurist and medical expert is called for than in this particular form of sexual delinquency. And for this reason. The circumstances surrounding the act, the motive of the act itself, the age, character, condition of the accused, can in no case authoritatively determine, to any but a well trained neurologist, whether that act lies, or does not lie, within the limits of mental pathology.