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Title: Sex and Reason
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Manufacturer: Harvard University Press
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| Sex and Reason by Harvard University Press A good book | I read this book some years back, and my memory may fade. But a conversation with a friend brought it to mind. The book is an evolutionary psychological view of human sexuality, and some of the laws & customs that pertain thereto. The discussion on homosexuality is long, but interesting - even for me, a dedicated heterosexual. The account about the birth order in determining homosexuality is the first I had read of that. I've since seen it elsewhere, though never with numbers attached.
Personally, I'm more interested in prostitutes than homos, not least because I find the (adult female) former attractive. Posner's discussion of this phenomena is brief. I recall two points: that prostitution is one of the few cases where one woman shares many men; and prostitution, by its very nature, selects for "pervert" customers, since the stranger your tastes, the harder they are to come by without paying for them.
However, Posner's book is not the final word on the evolutionary psychology of prostitution. That book has yet to be written. I have not written it; what I have written is a fiction about prostitution - good, sexy fun, to be sure - but nevertheless a book that considers the morality and politics of the business. EvoPsych is somewhere in the background. The book is called Naked in Haiti: A sexy morality tale about tourists, prostitutes & politicians. Enjoy. | | Sex and Reason by Harvard University Press Pragmatism, the Law, and the Political Economy of Sexuality | Judge Richard Posner's 'Sex and Reason' has influenced me more then any book I recently read, lead me to a complete reevaluation of what the Law is, and what it should be.
In this review I wish to concentrate less on Judge Posner's approach to the regulation of sex, although we will get there, but to his general approach to Jurisprudence. Becuase if 'Sex and Reason' taught me anything, it is that the way lawyers 'do' the Law is in need of thorough revision.
From my perspective as a third year law student in Israel, most of what the Law deals with is the meaning of words. Lawyers and Judges argue about whether or not various actions fall into various legal categories, and, particularly, about ways of interpreting statues and precedents. The main questions are 'how should one interperate the law'? and 'By what method does one decide which interpretation of the Law is best'?
In the United States, the main 'field of battle' regarding these questions are between the various Originalist positions (roughly, those who believe that words in statues mean what the people who wrote them meant), textualists (those who believe that texts should be read to be internally consistent) and living conbstitutionalists (the ones who believe that times change and the constitution - indeed, all laws - change with the times).
In Israel, the main contribution is by former Supreme Court Chief Justice and professor of Law, Aharon Barak. By Barak's lights, statutory interpretation is not originalist, nor is it textualist ("the interpretor is not a linguist" is his famous catchphrase - sounds better in Hebrew). Rather, Barak subscribes to a form of Living Constitutionalism which for want of a better term I'll call contextualism (Sometimes, misleadingly in my view, refered to as 'Purposive appraoch') - Barak argues that you can learn about the meaning of laws and decisions from their wider environment - the principles, laws and mores of the society. When faced with a legal question, Barak will strive for Harmoney not with the language of other statues, but with their intentions, so that all Law would create a single, ideologically cogent, fabric. In paraphrasing Hillary Rodham Clinton, one may say that according to Barak, It Takes a Village to decipher a Law.
I emphasises these different approaches in order to demonstrate that the criteria by which we decide whether an interpretation of the law is good are very unclear. But accept, for the moment, that one of these goals is superior to the others, and that we can evalutate various interpretations based on these criteria; We are still left with the question of what the marginal untility of trying to improve our interprative approach according to one of these criteria is.
Suppose a new study slightly imroves our understanding of the original meaning of the U.S. Constitution. Let's say that after a great deal of historical study and analysis, professor A has improved our understanding of the meaning of a certain clause by 5 %. Now interpretations are 5% more likely to correspond to the original understanding of the terms in question.
Well, so what? Are we, as a society, better off because we get a slight improvement in statue interpretation? That is highly unlikely. Even if we accept that one method of interpretation is correct, that does not mean that its outcomes are good. Indeed, it is unlikely that s study of 18th century political philosophy, or a comperative study of the spirit of law, will lead to good social outcomes. If you accept that it will, congratulations: you have just passed from the domain of Jurisprudence to the realm of theology.
From of social point of view, imrpoving stuatory interpretation based on any of the above criteria is a huge waste of time; a great deal of effort and resources are spent on things that will not, frankly, matter.
What I glimpse in Richard Posner's 'Sex and Reason' is an alternative: Pragamtism. The alternative is implicit here; I assume, not having read any of his other books (but I do frequest his excellent Blog, written jointly with econmist Gary Becker), that this approach is developed further elsewhere.
'Pragmatism', as I understand it, is about making positive statements about the consequences of various legal rules, and then chosing the best one. This requires sound theoretical analysis (Posner, and I, see the foundation of it in economics, but in principleit can be founded on psychology, anthropology, sociology, or many other fields, and Posner used reasearch from all these fields in his book) of the situation, and especially empirical research to find if the theory holds. Thus, a pragmatic approach to the questions of legal interpretations and doctrine requires first making positive inquiries into the subject; Only then should we make a normative judgement.
An example for this kind of reasoning would be the case for the supply of contraception to Teenagers. In the United States, some conservatives oppose supplying sexual education and contraception to Teenagers, and promote abstinence instead (in prgrams such as "The Silver Ring Thing", "True Love Waits", and "Free Teens"). Reasearch, however, demonstrated that such programs rarely decrease the negative side effects of Teenage sexuality such as unwanted pregnancy and disease (pp. 270-271). As Posner writes "the idea that puritanism may actually increase ... unwanted births is difficult to accept, but ... only because effective puritanism... would have the oppositve effect. A Puritan ethic that has only a modest effect in reducing the amount of teenage sex may produce more teenage pregnencies and unwanted births than moral indifference to such activity would" (p.272).
Now, in my view, this kind of analysis should be paramount in deciding legal questions such as whether government support for abstinence programs should be deemed constitutional. Perhaps the legal rethoric allowing the government to fund such projects is powerful - but legal niceties should not obscure the underlining realities. | | Sex and Reason by Harvard University Press Fun and Fascinating | Judge Posner is the finest legal mind of the current age, and "Sex and Reason" is precisely what you'd expect from him. Bemoaning the lack of empirical study that supports modern day sexual jurisprudence, the author takes it upon himself to correct the oversight. Empiricism is not wanting in the book; footnotes are omnipresent, filled with broad support and delightful nuggets.
The book begins with an investigation of sexuality throughout the ages. Sociobiological principles are explained and taken as postulates (women, on average, seek quality, whereas men seek quantity). Posner builds his model of rational sex--dismissing easily typical objections to economic modeling of human behavior--and usng it, attempts to unearth truths about some of the more risque periods of history. We are treated to an analysis of Greek pederasty, the rise of companionate marriage in the Christian church, prostitution throughout the ages, countless other subjects.
Modern sexual jurisprudence is investigated: Griswold is discussed, critiqued, defended. Utilitarian approaches are ventured forth in an attempt to justify Roe. Posner discusses cultural policy issues at the helm of modern debate, and offers us his own bright proposals: a free market in adoption, for instance, coupled with a thorough and unabashed defense.
Richard Posner's mind is nimble. His arguments are fun, light, powerful, thrown forth quickly into the crucible. So criticize what he says: one gets the feeling Posner wants nothing less. Be fascinated as insights are bred from left field. The book will make you think (about sex, no less, as if a person needed any prodding in that direction), make you smile, and it will make you, as it made me, quite impressed with a certain seventh circuit jurist. | | Sex and Reason by Harvard University Press A Mind-opening Book | | Reading Judge Posner's book is a humbling experience. Much of what I thought I knew about sex is a tiny fraction of what this book has documented, analyzed and argued. I have known that many early Greek luminaries, such as Plato, Socrates and Sophocles were homosexual. This book puts these mere points of interest in a wholly different light by exploring the social settings of the early Grecian (Athenian) society: that the early marriages were not companionate, that women in that society, including wives, were sequestered, that boys and girls were raised separately, and not by the mother, that pederasty was almost an accepted social institution, etc. I have always believed that homosexuality is a rooted genetically, although it is not binary factor. This book puts homosexuality, through the use of the "Kinsey scale", into different degrees and clearly distinguishes between homosexual tendency and homosexual activity, and defines the opportunistic homosexual in economic terms. With very simple reasoning, this book explains why urbanization seems (only seems) to foster homosexuality and the emergence of homosexual enclaves such as San Francisco and New York. This book also explains, again through an economic model, why the black men in this country seem (again, only seem!) to be sexually aggressive and promiscuous, whereas sexual abuse of off-spring children (girls) have a higher incidence in white households. I am also enlightened on how the child birth, which in the early days often caused the death of the mother, created serial polygamy (polygyny, to be more precise) and that the widower, who were older and more economically established men, puts young bachelors at a competitive disadvantage in securing a mate, especially in the early industrial society where the cost of marriage was high. I am enlightened to the role of the Church as the promoter of companionate marriage and how its fairly profound effect on this social institution. And also why the Church "overtly condoned prostitution and covertly condoned monastic homosexuality." There are many other issues, such as infanticide, fornication, adultery, divorce, coercive and abusive sex, pornography, adoption, surrogate child-bearing ... to which Judge Posner gave interesting and informative treatment. The thoroughness with which Judge Posner analyzes a problem is unmatched. Although I am not always completely convinced by his reasoning (because some of the arguments are necessarily qualitative and intuitive,) but the plausibility is striking. And I am frequently amazed by the different angles with which he looks at an issue, and the amount of facts and data he brings forth to support his views. When facts contradict what his theory predicts, he graciously points that out. In the conclusion of the book, Judge Posner, with scholarly grace and modesty, points out that his work was exploratory, a learning process for himself, and was not being presented as definitive. Judge Posner's writing style is very good. The book is never boring, though some of the information and arguments are repeated due to the inter-relatedness of many of the issues. Throughout the book, the Judge's remarkable analytic skill can be felt. At one point, the Judge mercilessly took apart the New Jersey Supreme Court's opinion of the Baby M case (Stern vs. Whitehead) and clearly showed how judges, lacking knowledge on the subject matter and often ignorant about economics, proceeded to vote their own prejudices, and substituted rhetoric and sloppy logic for judicial analysis. This one episode, which clearly illustrates the reason he wrote this book, as he stated in the introduction, is worth the price of the book.
How many judges are as good as Judge Posner? Since he has published so much, chances of his ever being nominated and confirmed to be a justice of the High Court must be pretty slim, considering the infamous borking effect. This is just as well. I wishfully think his publications probably has a greater influence on the society, especially the legal community, than if he were appointed a justice. Having read several of Judge Posner's books, I mark him down as one of a handful of top-notch intellectuals in my estimation. | | Sex and Reason by Harvard University Press Posner and the Sexual Revolution | | Chief Judge Posner's book is an erudite and interesting one. Whilst often regarded as a conservative for his scholarly analysis of economic issues in a market economy, this book is not conservative. It appears basically supportive of the sexual revolution. Its utility is at its greatest when it applies neutral economic analysis to the social aspects of sex. It is at its weakest when in the enthusiasm for the novelty and power of its analytical insights, it at least appears to derive moral or normative conclusions that do not necessarily follow from the positive analysis. It reflects the dangers that both libertarian Austrian economists, such as Ludwig von Mises and social democratic economists have both seen in trying to apply insights derived from markets to non-market transactions - here sexual ones. Accordingly, whilst Chief Judge Posner speaks supportively of certain aspects of Swedish policy in relation to sexual matters and expressly and by inference against the traditional conservative Judeo-Christian attitudes to sex in those areas, economic analysis does not dictate that viewpoint. Values dictate that choice, but economics can illumine the consequences of those choices. In sum, an able, readable, but a very personal work, which could be read by those who are not familiar with the limits to the economic analysis of law - an area Posner has brilliantly contributed so much to - as conclusively determinative of issues which cannot be resolved by that positive analysis alone. Whilst less accessible in view of the use of math, Professor Becker's works are closer to a neutral analysis of many of these important questions. | | Sex and Reason by Harvard University Press Product Description | Sexual drives are rooted in biology, but we don't act on them blindly. Indeed, as the eminently readable judge and legal scholar Richard Posner shows, we make quite rational choices about sex, based on the costs and benefits perceived. Drawing on the fields of biology, law, history, religion, and economics, this sweeping study examines societies from ancient Greece to today's Sweden and issues from masturbation, incest taboos, date rape, and gay marriage to Baby M. The first comprehensive approach to sexuality and its social controls, Posner's rational choice theory surprises, explains, predicts, and totally absorbs. |
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