Richard Posner has a complaint against many of his fellow judges. Owing to their lack of up-to-date information and their conservative backgrounds, his colleagues often decide cases that touch on sex in an ignorant and benighted manner. Judge Posner aims to remedy matters with this comprehensive treatise, which offers both a theory of how sexual customs have evolved and normative guidance on abortion, censorship of pornography, homosexual marriage, and similar issues.
Before his elevation to the Court of Appeals, Posner achieved renown as a leading proponent of the law-and-economics movement; and the present work rests on an extension of this approach to sexual matters. Cost and benefit, the basic categories of economics, govern marriage and the family no less than the business world.
More concretely, Posner holds that three factors principally determine the nature of marriage in a society: the scarcity of available women; the degree of urbanization; and, most importantly, the work accessible to women outside the home. In ancient Greece, female infanticide among other reasons led to a dearth of marriageable women; as a result, women married at a much younger age than men. The sole aim of the marriage was reproduction. Women had nothing to ‘sell’ but their reproductive power and were left sequestered in the home. No close emotional bonds formed between husband and wife, and men found solace in sexual affairs outside the marriage with both women and other men.
The rise of Christianity drastically altered the customary style of marriage. Though reproduction of course remained vital, marriage increasingly came to involve close emotional union. Posner oddly calls this “companionate” marriage, although the term normally designates a form of childless trial marriage that Judge Benjamin Lindsey promoted with great notoriety some sixty years ago. Bertrand Russell’s Marriage and Morals, which Posner frequently cites, devotes a chapter to it, but Posner has apparently not taken notice.
The type of marriage that has prevailed in the Western world for nearly two thousand years is, according to Posner, due for replacement. Contemporary women have entered the job market in large numbers and their financial dependency on men has lessened. To Posner, this development portends the decline of lifelong marriage. Cohabitation for limited periods will replace traditional marriage, a trend that will proceed all the faster as developments in technology detach sex from biological reproduction. Posner looks to the liberal sexual morality of Sweden as the wave of the future, at least for the West. (He devotes only a few pages to non-Western societies.)
Posner’s speculations are beset by a number of problems. Of each of his stages, he asks: what economic functions does marriage play in society? But to describe a function does not suffice for a causal explanation, as Ernest Nagel long ago showed in a classic paper. Posner needs to demonstrate how the actions of individuals lead to the spread of the customs he describes. He devotes all of one paragraph to this key difficulty; the implausible “Darwinian” mechanism he refers to requires primitive tribesmen to possess a sophisticated knowledge of economics and anatomy.
Posner thinks that a great advantage of his theory over “moralistic” explanations of sex is that it generates testable hypotheses, e.g., “black men commit fewer heterosexual rapes than white men, after allowance is made for other variables that explain differences in crime rates. . . . ” While this particular statement “is not supported” by the data, the ever-ingenious Posner finds comfort in the fact that although “the coefficient of the nonwhite variable is positive for rape . . . [it is] much smaller in the case of rape than is the case of any other crime against the person.” In other words, though the hypothesis is wrong, it might have been even more erroneous. Thus the theory is vindicated.
Although one can only be impressed by Posner’s vast erudition, albeit gathered with the help of 11 research assistants, he makes a number of questionable claims. For instance, he states that. “Textual silences can be pregnant. From the fact that the Ten Commandments do not forbid incest we should not infer that the ancient Jews condoned the practice. . . . ” He evidently has forgotten that the Old Testament contains detailed regulations forbidding incest. And why does he think that the “disapproval of male adultery” began with Christianity? Although by definition in the Old Testament adultery can occur only with a married woman, both persons involved are subject to the death penalty. As a source for the Roman Catholic position on transsexual operations, he cites a pamphlet by an Anglican theologian. Some Catholic theologians, Posner quite correctly thinks, are not completely hostile to contraception. But one of his two examples is Germain Crisez, a leading opponent of contraception who has written a book attacking it, and it is false that David Popenoe, the foremost sociologist of the Swedish family, found no ill results from Sweden’s family structure except a rise in juvenile delinquency.
If the book consisted only of Posner’s descriptive theory of sex, it might be rated informative, though overly speculative and careless. Unfortunately, a substantial part of the work consists of Posner’s venture into moral theory, and here his skill at argument deserts him.
He discovers an internal tension in the position of most critics of abortion. “Suppose the mother has a 10 percent chance of dying unless she has an abortion. A majority of supporters of the right-to-life movement would think abortion permissible in these circumstances. The implication is that a mother is worth ten fetuses”—a contradiction of their professed belief that the life of the fetus equals in value that of the mother. Further, since a mother is worth no more than a child, the latter “is also worth ten fetuses. And this, I claim, is what right-to-lifers are committed to believing if they want their beliefs to be consistent.” Not at all: a view regarding the permissibility of abortion need not be based in any way on a comparison of the value of different lives. Posner seems incapable of grasping a moral theory that, unlike his own utilitarianism, judges acts by other criteria than maximizing value.
In his discussion of pornography, Posner once more puts logic to work: “The feminists fear that pornography causes rape; [Irving] Kristol that it causes the substitution of masturbation for intercourse. Since rape is a form of intercourse, Kristol must believe that pornography reduces the incidence of rape; while feminists must believe that it reduces the incidence of masturbation.” An analogous “argument” will make the fallacy clear. Television and books are partial substitutes for each other. Therefore, an increase in the sale of calculus textbooks will decrease the number of viewers of Sesame Street.
Rape gives Posner more than a little trouble. It is not intrinsically wrong: the view that certain acts are immoral independent of consequences rests on religious beliefs that Posner thinks outmoded. Although most “Western intellectuals” have given up belief in God, many continue to think that human beings are “not just animals endowed with large brains but beings of a special worth and dignity, endowed with a moral sense and entitled to respectful treatment by our fellow men.” This is idle superstition: it generates no testable propositions. Away with such nonsense!
Why then is rape wrong? What if a rapist derives more satisfaction from his assault than his victim suffers injury? Would a utilitarian then favor it? Posner’s moral slide rule gives us the answer: “licensing utility monsters such as Bluebeard or de Sade to rape would not really be utility-maximizing, if only because of the fear it would generate in the community as a whole and the expense of the self-protective measures that this fear would incite.” Were Posner not an influential federal judge whose views help form the law, this imitation of Mr. Gradgrind would be laughable.
What is the upshot of Posner’s long inquiry? Fie vigorously opposes efforts to promote the traditional family. Resistance to the Swedish Utopia that lies ahead comes from “social conservatives, who dislike change.” These troglodytes lack the trust in the free market of the followers of John Stuart Mill. That many of these “social conservatives” support the free market to a far greater extent than Mill seems not to have occurred to him.
Posner himself hardly qualifies as a champion of the free market. He favors governmental subsidies of sexual education and contraceptive advice, even though his own analysis of the consequences of abortion, homosexuals in the military, etc., lends only “equivocal support” to the liberal policies he endorses, as he himself recognizes. His discussion offers us no means to weigh the good and bad consequences of the various measures he proposes. Thus, all he is really entitled to say on utilitarian grounds is that he does not know whether his program of sexual reform will be beneficial. But this does not stop him; Sweden, with its “morally indifferent” attitude toward sex, beckons.
Sex and Reason leaves me astonished. The combination of assiduous reading with preposterous errors, poor reasoning, and moral blindness is in my experience unique. Yvor Winters’ description of Ezra Pound applies with much more justice to Posner; he is a barbarian loose in a museum.
[Sex and Reason, by Richard A. Posner (Cambridge, Massachusetts: Harvard University Press) 458 pp., $29.95]