Sex and Reason

...In contrast, Sex and Reason has this to say about love: "Love can be given a precise economic meaning . . . it is a preoccupation with the unique particulars of another person, particulars for which there is, by definition, no substitute to be found in any other person...

...Marriage, in this view, is only as secure as the morality that keeps the struggling spouses in line...

...He claimed that only the institution of the family "preserves the habit of having children," and he speculated that, as women became increasingly liberated financially and sexually (something he wholeheartedly endorsed), fatherhood would become increasingly superfluous...

...Posner credits Marriage and Morals with advancing a notion of morally indifferent sex, but Russell stressed that even the most liberated view of sex must be rooted in morality...

...It "problematized" a host of behaviors, including homosexuality, adultery, and prostitution, that were ignored or tolerated when arranged marriages were the norm...

...It does not...

...Posner would like to see American parents become similarly enlightened...

...Posner admits that some of the policies he would favor to dispel ignorance are not exactly libertarian...

...Posner quickly moves to demystify sex...

...A widespread replacement of conventional marriage with contractual relationships, says Posner, would make "the current realities of marriage transparent...

...This is a twofold departure from libertarianism: not only is Posner suggesting that we use the state to promulgate a specific set of moral values—in this case, those that "deproblematize" sex—but he is indifferent to the right of parents to inculcate values in their children without having those values undermined by the state...

...It would diminish their interest in history and their sense of the continuity of historical tradition...

...True to his ground rules, sympathy for the victim and moral disgust are not allowed to dominate the calculus...

...But it is clear that Posner would like to eliminate much of the moral baggage from the private realm as well...

...Posner's support of parental liberty seems to hinge on the values being transmitted: elsewhere in Sex and Reason he expresses sympathy for parents whose "autonomy" was threatened when the state prevented them from obtaining birth control for their children...

...The state, he says, should regard sex as "morally indifferent...

...Only in the looking-glass world of utilitarian thinking can one downplay the impact of rape on its victim while fretting over theimpact of homosexual marriage on a dinner party...

...Russell was especially fearful for the well-being of children, and stressed that only adults without children should enjoy sexual liberty, experimentation, and trial marriage...

...It would make it far more difficult to take an interest in anything after one's own death...

...We need a tiebreaker, a method for allocating the risk of nonpersuasion, such as a preference for limited government...

...It helped foster a homosexual subculture, since homosexuals who would have married in a system of non-companionate marriage found it difficult to do so when marriage demanded a high level of emotional and sexual intimacy...

...The famous sexual revolutionary urged unhappy couples to stay together for the sake of the children and admitted that "the break-up of the family, if it comes 70 The American Spectator May 1992 about, will not be, to my mind, a matter for rejoicing...

...drive, general differences between male and female sexuality, and the existence of homosexuality...

...Posner wishes to provide a "theory of sexuality that both explains the principal regularities in the practice of sex and in its social, including legal, regulation and points the way toward reforms in that regulation...

...The battles surrounding surrogate motherhood cases could be avoided, says Posner, if only contracts were rigorously enforced...

...Sweden has even avoided the unfortunate byproducts of companionate marriage, since in Sweden legal marriage—"a relationship imposing rights and duties that cannot be altered by contract"—has largely given way to contractual cohabitation, which is open to heterosexuals and homosexuals alike...

...No impartial tiebreaker suggests itself...

...When people find their search for an appropriate mate obstructed, Posner says, they channel their drives into other areas, such as fetishism, voyeurism, or rape...

...He takes a stab at some quantitative analysis of his own, positing that "the benefits of prohibition are therefore v, the value of one fetus saved, times .16n (.3/1.83 = .16), where n is the average number of abortions that would be performed each year but for the prohibition...

...What makes the Swedish effort so effective, says Posner, is that the attitude of morally indifferent sex that is promoted in the schools is reinforced at home by the parents...

...Posner begins with the assumption that human sexuality is a mix of givens and choices...

...He also speculates that effeminacy may be a form of signaling, a "device for reducing the costs of sexual search...

...In his treatment of homosexual marriage, for example, Posner is willing to take into account public prejudice against homosexuality...

...This form of marriage greatly elevated the status of women from that in pagan societies, but according to Posner it has had some unfortunate side-effects...

...He doubts that tougher laws against date rape would help women, since it is a difficult charge to prove...

...This, Posner charges, was "an attempt by semantic legerdemain to make sexual liberty appear to occupy a different plane of social value from economic liberty...

...While there are doubtless economists who might find such an assertion titillating, you would not want to be in the same room with them...

...Posner's relatively cavalier treatment of date rape is especially strange, given his casual assertion, earlier in Sex and Reason, that "quite normal" men would rape if there were no laws against it...

...He rarely factors in emotional and psychological considerations when discussing policy issues, and never evaluates the effects of behavior or policies on the formation (or deformation) of character...

...Sex and Reason is full of references to the "dysfunctionality" and "prudishness" of Christian sex ethics, and to the "puritanical attitudes" that prevail in "monotheistic" cultures...

...He fears that legalizing homosexual marriage would appear to sanction behavior that many people disapprove of...

...The only possible downside is pregnancy—a practical glitch that can be controlled by contraception...

...Russell felt that the consequences of this development would be nothing less than revolutionary: If this comes about, it will make a profound change in the psychology and activities of men, far more profound, I believe, than most people would assume...

...His discussion of rape is especially cold-blooded...

...This analysis reflects a peculiar view of women: it is not at all clear that they would rather maintain a fixed level of dating than screen out potential rapists—even if that means spending a few more evenings at home with a Lean Cuisine...

...Posner's treatment of date rape is even less satisfying...

...In previous books, Posner has applied the tools of economics to questions of judicial decision-making, the role of the courts, the relation between law and morality, and the limits of interpretation...

...Were that ignorance dispelled, we might move rapidly toward the model of morally indifferent sex...

...Posner's clinical detachment leads him down some strange paths...

...Posner's only regret is that, by lumping sexual behavior under the rubric of "privacy" rather than "liberty," the Court shied away from explicitly endorsing sexual freedom...

...A modern "sex morality" should be free from superstition, said Russell, but it should still be grounded in two timeless principles: There should be as much as possible of that deep, serious love between man and woman which embraces the whole personality of both and leads to a fusion by which each is enriched and enhanced...

...According to Posner, the single factor that most complicates the calculus of costs and benefits in the area of sex is the institution of "companionate" marriage—the notion, promoted by the early Christian church, that marriage should be founded on love and be a genuine partnership between husband and wife...

...Besides, he says, we could always take the extra precaution of restricting free-market adoptions to babies under six months old, since "very few" child molesters are interested in infants and "very few" would buy a baby for future abuse...

...Finally, it would create certain "information costs"—for example, "if we invite people to a party and ask them to bring their spouses, we know that each man will either come alone or bring a woman and that each woman will either come alone or bring a man...

...To strike a balance between good and bad effects is scarcely possible, but it is evident that the effects would be profound and far-reaching...

...Posner concludes that the economic-utilitarian analysis of abortion is inconclusive...

...Posner was moved to write this book when it dawned on him that judges "know next to nothing" about sex outside their own limited experience—more limited than that of most people, he suggests...

...When moral or religious forces decline, as they have in most contemporary Western nations, societies may turn to law to regulate sexual behavior...

...He goes through the motions of presenting an excruciatingly objective analysis, even weighing the possibility that abortion may actually save lives...

...Posner agrees with Russell that Christian morality has done much harm...

...This understanding] would be upset by permitting homosexual marriage...

...For Posner there can, be no higher praise...

...Sex and Reason addresses the relationship between biology and culture, the regulation of sexual behavior, and the value of marriage and conventional morality...

...Children don't loom large in Posner's worldview...

...But his Marriage and Morals, from which Posner takes such inspiration, shows far greater sensitivity than Sex and Reason to the social ramifications of sexual policies...

...Again, Sweden provides the inspiration: "The Swedish experience suggests that an aggressive program of explicit sex education, coupled with an aggressive program of making contraceptives available to teenagers, can reduce the rate of pregnancy to low levels in a teenage population that is even more active sexually than the corresponding American population...

...Homosexual promiscuity, Posner theorizes, may reflect the costs of public intolerance...

...Posner also criticizes Justice Blackmun's opinion for failing to "dramatize the hardships" of a woman forced to carry her fetus to term: "There is no mention of the woman who is raped, who is poor, or whose fetus is deformed...

...The notion of a "tiebreaker" seems especially disingenuous, given that the rest of Sex and Reason supports a pro-choice position and seems to do so for reasons other than the default setting of libertarianism...

...n one of the many footnotes in Sex and Reason, Posner states that his endorsement of morally indifferent sex applies only to "the public or political side of morality...

...rape increases the amount of fear in a community...

...But the most profound effect of companionate marriage, Posner asserts, was the development of a puritan sexual morality that came into being to discourage husbands and their newly liberated wives from straying...

...In an especially cheap shot, Posner takes on, as his sole example of Christian moral thought, the dated and discredited writings of Anita Bryant...

...Roe v. Wade in particular "emerges as a statement of social policy congruent with the model of morally indifferent sex...

...It should adopt the same laissez-faire attitude toward sex as toward any other activity, restricting it "only to the extent required by economic or other utilitarian considerations...

...No study, he says, has ever proved that the absence of a father, per se, harms a child...

...Fortunately, says Posner, we now have the means toslough off the vestiges of conventional morality: the "acid bath of economics" can help us peel away "layers of ignorance, ideology, superstition, and prejudice...

...Anticipating the obvious question of how a child's interests would be protected in a market of baby-selling, Posner simply cites the inefficiencies and occasional errors of our current highly regulated adoption system...

...Moral revulsion may play a small role in the utilitarian analysis of rape, but it makes a number of surprise appearances elsewhere in Sex and Reason...

...He struggles with the difficulty of producing a utilitarian justification for criminalizing rape (since the pleasure a sadistic rapist SEX AND REASON Richard A. Posner Harvard University Press/458 pages/$29.95 reviewed by ELIZABETH KRISTOL 68 The American Spectator May 1992 gains from the act may exceed the pain of his victim) and finally comes up with three possible justifications: the rapist is a "sex thief...

...For example, when he discusses the evolution from traditional marriage to contractual relationships that, by his own account, would be marked by a higher level of transience and dissolution, Posner acknowledges only that children might experience a "diminution in resources"—a diminution that could be compensated for, if a society chooses to do so, by government expenditure...

...Cities also offer more privacy and anonymity than small towns, so there are fewer deterrents to aberrant behavior...

...T he infinite malleability of utilitarianism is most glaring in Posner's treatment of abortion...

...Over and over in Sex and Reason Posner extols the virtues of the Swedish approach to sex...

...Yet they are confronted with a growing number of cases involving complicated sexual issues...

...This analysis leads him to ponder the contention that "abortion kills, as it were, only half a child," since when one factors in questions of timing and replacement value, it takes 1.83 abortions to reduce the population by one...

...For a brief shining period, though, "the Supreme Court had set the United States on a course of convergence with Sweden in matters related to sex...

...The second thing of importance is that there should be adequate care of children, physical and psychological...

...But the game was rigged from the start: all the variables in Posner's seemingly neutral economic calculus were of his own design, and had he programmed different factors into the calculus, or assigned them different values, he could have averted a stalemate...

...Law-and-economics theorists span the ideological spectrum but share the view that economic analysis is useful in understanding law and its effects...

...thus, "children would not be born who would have been born had abortions been permitted in the earlier period...

...According to Posner, men would be deterred from dating by the specter of rape accusations, and women would respond to this decline in their social life by becoming more aggressive about initiating dates...

...You could find yourself being told that "sexual reproduction is a low-risk strategy analogous to that of an investor who holds a diversified portfolio of securities...

...Givens include the sex Elizabeth Kristol has written for The American Spectator, the Washington Post, Commentary, First Things, and other publications...

...Sweden, however, has liberated itself from both public regulation of sexual behavior and traditional mores, and has thereby taken "a big step toward the model of morally indifferent sex...

...It would eliminate from their lives the only emotion equal in importance to sex love...

...Moreover, he adds, the "median woman" might suffer if there were more stringent penalties for date rape...

...He repeatedly praises Bertrand Russell, who in his 1929 book Marriage and Morals argued for more liberated attitudes toward premarital sex, sexual relations within marriage, and the sexual education of children...

...it is, he insists, subject to the same guiding principle as all other human activity: "rational man goes where the balance of costs and benefits inclines...

...Choices include individual sexual behavior and the ways in which cultures encourage or deter that behavior...

...Bertrand Russell can hardly be accused of having been a paragon of bourgeois behavior: his personal life was a tangle of failed marriages, affairs, and infidelities...

...The theory, says Posner, will be grounded in libertarian values and will rely on a "functional, secular, instrumental, utilitarian" mode of analysis...

...Posner's pro-choice sympathies are underscored in his chapter "The Sexual Revolution in the Courts...

...If abortion were outlawed, he reasons, society would become overpopulated sooner, and people would refrain from having children...

...And he notes that the current adoption picture, with thousands of parents waiting years to adopt a baby or resorting to a black market, could be improved by shifting to a free market in baby-selling—or what he demurely prefers to call "parental-rights" selling...

...There is no reference to the death of women from illegal abortions...

...The burden is on Posner to show how love can flourish in a culture of "morally indifferent" sex, and how children can thrive in a society that devalues the family...

...Posner's treatment of free-market adoption is hardly more nuanced...

...This is a strange burst of compassion from someone who regards a rapist as a "sex thief...

...The problem with the United States, he says, is that we live in a confusing no-man's-land between permissiveness and repression...

...It would also put government in the "dishonest position" of painting an overly rosy picture of homosexual life...

...to avoid the risk of conducting relationships openly, homosexuals "will tend to substitute the sex act, which can be performed in a very short time and in private, for courtship, which is public and protracted...

...For example, he suggests that sexual diversity flourishes in cities because a large and concentrated population reduces the "search costs" of finding a suitable sex partner...

...As for premarital sex, Posner deems it "a generally harmless source of pleasure and for some people an important stage of marital search...

...These considerations, in his view, do not justify banning prostitution or most forms of pornography, or restricting the freedom of homosexuals to hold certain jobs or to adopt children...

...These benefits, he says, must be traded off against "the costs, unrelated to death, to pregnant mothers who would have gotten a legal abortion but would not risk an illegal abortion, and to these women's other children, present or future...

...It would make sex love itself more trivial...

...Posner is gloomy about the fate of sexual liberty under the current Court: it will be many years, he laments, before the Supreme Court "again takes The American Spectator May 1992 69 up the cudgels on behalf of sexual liberty...

...Whether the effect upon men would be good or bad, I do not venture to say...

...But economic analogies come easily to the legal scholar and circuit court judge Richard Posner, one of the founders of the "law and economics" movement that arose in the early sixties...

...This is a tendency that Posner the libertarian vigorously opposes...

...Moral convictions, Posner implies, are largely a product of ignorance...

...On the policy level we allow teenagers to obtain contraceptives, have abortions, and receive welfare assistance for their illegitimate children, but our public rhetoric still reflects puritanical sexual values...

...Here Posner develops his vision of a judiciary that plays an activist role, not only in removing unnecessary restrictions on sexual liberty, but in reshaping American attitudes about human sexuality...

...Posner has high praise for the 1965-77 Supreme Court for creating a constitutional right of "sexual autonomy...

...and rape raises the cost of self-protective measures...