Abstract
This chapter focuses on sexual legal morality and sexual ethics. In the erotic domain, Dutch practice provides an ideal testing ground for liberal theory. Since the Sexual Revolution of the 1960s, the Netherlands has been in the vanguard of sexual emancipation, providing a unique opportunity to observe the liberal model in action. The chapter analyses Dutch legal history in this field in the light of the current philosophical debate concerning the harm principle.
In the public sphere liberal legal morality is to be preferred to Christian moralism and moral majoritarianism. Indeed, research among Dutch youth shows that the emancipation of their sex life and the free availability of pornography on the Internet have not brought about an increase in harmful sexual activities. In the private sphere of sexual ethics, too, the harm principle is adequate: because of its highly personal character, anything goes in erotic love, with only one limiting condition—the consent of the parties involved. This is preferable to Bataille’s sacral eroticism and Nagel’s good sex. For connoisseurs, the model of Multiple Love is recommended as a standard of perfection for non-morally good erotic love.
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Notes
- 1.
More about Bataille in Chap. 5 on drug policy, particularly the section The right to be high.
- 2.
These terms are explained in de Introduction.
- 3.
As will be seen, it is unclear whether Nagel’s perfectionist model provides a moral ideal, or an immanent standard for the quality of sex as such. But his emphasis on symmetrical reciprocity obviously invites a moral interpretation, as given by Ketchum (1980).
- 4.
Provided they are adults. Chap. 4 discusses sex with minors, particularly in cases of incest.
- 5.
For prostitution in the 17th century, see the historical Chap. 2 Can we learn from history?
- 6.
Peter Gay (1985) refers to diaries to show that for most middle class women the 19th century was not a ‘period of latency’: it was only their public image that had been adjusted.
- 7.
According to Mill, the ‘appropriate region of human liberty’ comprises, first, freedom of consciousness, including freedom of thought, feeling, and ‘freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological’ (Mill 1977, p. 138), as well as freedom to express and publish opinions; secondly, freedom to frame a life plan that suits one’s tastes and pursuits; thirdly, freedom to associate with other individuals.
- 8.
An explanation of rights is proffered in Utilitarianism: ‘To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask why it ought, I can give him no other reason than general utility’ (Mill 1977, p. 309). As indicated above, however, Mill’s qualitative version of utilitarianism has a strong liberal tenor.
- 9.
Also see Chap. 6 on euthanasia.
- 10.
Yet, offensive to public decency was a vague term that required further judicial specification. The Supreme Court held that writings are offensive in this sense only if they are exclusively aimed at arousal in an obscene way. This is not the case if the titillation is justified by a higher aim, such as in works of art or science. After all, otherwise the prohibition might include Velasquez’s Rokeby Venus and James Joyce’s Ulysses.
- 11.
A contemporary version of Catholic natural law doctrine and sexual morality has been presented by Finnis (1997).
- 12.
In 1972 Deep Throat ‘burst into the public consciousness’, bringing about a ‘transition from illicit stag films to the legal fictional narratives’ (Schaefer 2004, p. 371).
- 13.
HR 22 February 1966, NJ 1966, 393.
- 14.
In the UK, the 1967 Sexual Offences Act decriminalized homosexual acts between men, in accordance with the recommendation of the Wolfenden Report. In 2016 the government announced the ‘Allan Turing Law’ that pardons men who had been convicted before 1967. Allan Turing , a famous computer scientist, was convicted in 1952. Rather than going to jail, he preferred to be chemically castrated.
- 15.
See Maris (1985).
- 16.
- 17.
As Diamond (1999) points out, the decrease in sexual violence in liberal countries does not necessarily affirm the catharsis theory. The cause might just as well be that in an open society women are more open to voluntary sex.
- 18.
See Maris (1985). In Pornographies (2000), Leslie Green opposes feminists such as Dworkin and MacKinnon (1988) who identify all pornography with heterosexual male dominion over women, including gay porn. MacKinnon: ‘The capacity of gender reversals (dominatrix) and inversions (homosexuality) to stimulate sexual excitement is derived precisely from their mimicry or parody or negation or reversal of the standard arrangement. This affirms rather than undermines or qualifies the standard sexual arrangement as the standard sexual arrangement …’ (MacKinnon 1989, p. 144). Against this, Green denies that gender roles (active-passive) are repeated in same sex relations and porn. Gay sex is a class of its own, which does not mimic the straight world, nor reverse it. Moreover, the latter would imply that gay male porn breaks the hetero rule, instead of affirming it. Since pornography comes in different kinds, Green concludes, a general prohibition would infringe on the autonomy and equality of sexual minorities.
- 19.
Also see Nussbaum (1995) on ‘Objectification’.
- 20.
Also see Skipper’s criticism of Dyzenhaus . Dytzenhaus (1992) claims that Mill may be read in support of censoring pornography because of its indirect immaterial harm to women. Dyzenhaus refers to Mill’s plea in The Subjection of Women for breaking down social structures that keep women in their place. This would include porn that contributes to their subjected status: pornography eroticizes inequality by depicting women as eagerly giving in to the erotic wishes of men. Mill , says Dyzenhaus, would have agreed that porn moves women to internalize a ‘false consciousness’ of their female nature, which turns them into ‘willing slaves’ and prevents them from ‘acting as autonomous individuals’. This results in ‘a false appearance of consent’ (Dyzenhaus 1994, p. 539). Skipper (1993) objects that Dyzenhaus wrongly singles out pornography as a primary aim of censorship. Its influence on a supposed female false consciousness will be small, for most consumers are men. ‘Women’s literature’ texts present a more obvious target for censorship. Skipper is not impressed by Dyzenhaus’s assumption that pornography has an exceptional influence because it would ‘eroticize’ sex inequality. Romanticist and religious texts have a much stronger persuasive force: ‘Inequality can and has been romanticized, glorified, celebrated, patriotized, totemized, sacralized, proselytized, and aestheticized’ (p. 728). Skipper concludes that the ideological subordination of women should be subjected to public criticism, not to censorship.
- 21.
As to MacKinnon’s argument that pornography should be viewed as harmful action rather than offensive speech, see Stark (1997).
- 22.
According to Charlotte Witt (1997), the anti-porn feminist Catharine MacKinnon and the pro-porn feminist Nadine Strossen (1995) argue from two fundamentally different philosophical paradigms. In the holistic Hegelian-Marxist view of MacKinnon, individual free choice is limited by socially constructed asymmetrical gender roles that constitute one’s sense of identity. ‘Because our culture is misogynist, its core sexual values include the rape, abuse, and sexual harassment of women—the very values that are depicted and enacted in pornography, which MacKinnon thinks is our culture’s central sexual pedagogical institution’ (Witt 1997, p. 166). In MacKinnon’s view, pornography is a speech act that is encoded by the social structures, so that it does not make sense to distinguish between harmless pornographic publications and harmful sexual acts. Therefore censorship. By contrast, in Strossen’s individualistic liberal view individuals, male and female, are capable of autonomous choice in their sex life. To overcome social inequality, women should strive for an equal social status. Strossen sees pornography as a form of sexual expression, not as an act, so that porn, even if sexist, is not harmful. Production and consumption of pornography by women, says Strossen, contributes to their emancipation process. If Witt’s analysis is correct, censoring pornography does not make sense, regardless of which paradigm one chooses. In MacKinnon’s holistic view only a complete social revolution would do. If women were indeed indoctrinated by dominant sexist values, maternalistic prohibitions of one element of the suppressive system would be a specimen of impotent symbolic legislation.
- 23.
Internet porn will stimulate solistic sex in the form of masturbation as well as interpersonal sexual exchange: ‘Sites like Nerve.com are thus an excellent example of the tendency to put to work the capacity for interactive fantasizing that computer-mediated communication promotes’ (Arvidsson 2002, p. 74).
- 24.
See note 18 above.
- 25.
The term pornofication is mostly used with a sense of alarm, see the Introduction to Coleman and Held (2014): ‘Beginning with the very idea of pornography’s impact on contemporary popular culture, whether it is phrased as the “porning” or “pornification” of culture or the recognition of the existence of porno chic, the pervasive presence of porn in most of our lives is obvious. Pornography has infiltrated and informs contemporary culture. In this respect, we as individuals are also “porned” beings. Insofar as culture informs who we are, our self-understanding, and thus creates a feedback loop whereby we create the culture that in turn shapes our identities, a porned culture is indicative of porned individuals, and porned individuals express and recreate their porned culture’ (p. xiii).
- 26.
Which implies that 12% have preserved their virginity at the age of 24.
- 27.
Three-quarters used a condom when they had sex for the first time; 55% of the boys and 63% of the girls used the pill; 40% of the boys and 45% of the girls used both (‘Double Dutch’). For a comparison with other Western countries, see Gabhainn et al. (2009) 54(S1–S7); also Currie et al. (2012), p. 193.
- 28.
As remaining points of general concern, the study identifies lack of consent and gender differences. With regard to their first intercourse, 0,2% of the boys and 3,3% of the girls said that they had been forced to do so; 4,7% of the boys and 13,5% of the girls were persuaded; while 91,7% of the boys and 82,4% of the girls reported mutual consent. 7% of the girls and 2% of the boys had had involuntary intercourse. In sum, girls are more often victims of transgressions. (Also see Dukers-Muijrers et al. 2015). On average, girls experience more sexual problems, such as regularly not reaching orgasm (25%; boys 2%), or regularly not wanting sex (17%; boys 6%). Boys are more positive about porn: 33% find it instructive (girls 2%), 75% find it exciting (girls 22%). Their use thereof is considerably greater: 73% had visited a porno site during the previous year (girls 21%).
- 29.
To avoid stereotypes: these are significant but merely relative differences between the diverse ethnic and social groups, which may only apply to a minority within these groups.
- 30.
Of the Moroccan and Turkish boys, 10.7% reported to have forced someone to participate in sexual activities, which is three times more than in the case of ‘Dutch or Western’ boys, who score 3.2% (de Graaf et al. 2005, p. 63) . This implies that almost 90% of the former group did not use force. The percentage for Surinamese and Antillian boys is, respectively, 7.8 and 8.1%. Lowly-educated boys score 5.3%, highly-educated boys 2.9%.
- 31.
- 32.
In The Elementary Particles, the French novelist, Houellebecq (2001), maintains that the Sexual Revolution has deteriorated to a merciless sex market. The family and other traditional institutions that used to constitute barriers between the individual and the market have been swept away by plain hedonism. Since then absolute sexual freedom is dominant, and has degenerated into cynical selfishness and aggressive competition. Houellebecq’s protagonist, the sex-crazed Bruno with his unattractive appearance and short penis of only 12 cm., therefore inexorably ends up at the bottom of the free market of sexual relationships. He has no other choice than resorting to porn and sad solo sex. More about distributive justice and looks in Chap. 7 on Freaky Justice.
- 33.
Bataille chose the incest taboo as a central theme in some of his pornographic novels, see Chap. 4 on incest.
- 34.
- 35.
In reference to Hare’s interpretation of the universalizability principle, in Hare (1963).
- 36.
Note that sacral eroticism in Kierkegaard’s Christian version transcends everyday life in an ethical way that is the very opposite of Bataille’s pagan cosmic orgasms. Kierkegaard’s egocentric erotic amoralist also differs in kind from Bataille’s erotic transgressor who seeks dissolution in an egoless cosmic flow.
- 37.
Fetishism is the same as ‘talking to someone else’s shoes’, bestiality ‘is like discussing Spinoza with a moderately intelligent sheep’. As Ketchum points out, Solomon’s condemnation of sadistic rape as ‘perverse’ does not hold. Solomon argues that it entails a breach in the communication. Ketchum notes that rapist and victim communicate their emotions and perfectly understand each other. The rapist expresses his feelings of lust and power, while his victim expresses her fear. The ‘only’ thing missing is mutual consent, but that element is not required in Solomon’s communication model, nor is symmetry. See Ketchum (1980), p. 149.
- 38.
Moulton (1980) remarks that Nagel analyses a first flirtatious encounter of strangers, whereas most sex occurs between regular partners. ‘The comfort and trust and experience with familiar partners may increase sexual satisfaction’ (p. 111). In her view, intimacy is the distinctive feature of sexual relations, but this does not lead to a sex-specific non-moral concept of perversion: ‘normative judgments about sexual behavior should not be unrelated to the social and moral standards that apply to other social behavior’ (id.).
- 39.
The view that ascribes an external end to ‘plain sex’, says Goldman , continues the moral tradition of Christianity in its rejection of the physical side of man as his animal ‘lower self’.
- 40.
Unlike Goldman’s analysis, Ketchum’s ethical account includes sexual ‘perversion’: ‘Goldman argues that what is morally wrong in sexual behavior is what is morally wrong in other behavior, that sexual ethics is simply an instance of more general moral considerations. Unfortunately, he does not see fit to extend this principle to the concept of perversion’ (Ketchum 1980, p. 151) In spite of this moral terminology, Ketchum is not completely clear as to her intentions. She may only be trying to amend Nagel’s non-moral criterion of good sex, yet she explicitly introduces ethical standards.
- 41.
Ketchum conceives of perverted sex as a subset of bad sex. With perverse activities, lack of mutuality constitutes an essential part of the desire of the pervert. With merely bad sexual behaviour, this lack is contingent. ‘If mutuality is a criterion of good sex, then universalizability will be the criterion of nonperverted sex’ (Ketchum 1980, p. 152).
- 42.
Also see Giddens (1992).
- 43.
See Laqueur (2003).
- 44.
Unlike Goldman’s hedonistic definition of ‘plain sex’ as being aimed at the fulfilment of one’s desire for another person’s body, sexual pleasure may just as well be asocial. Also see Primoratz (1999), p. 43-46 on ‘plainer sex’.
- 45.
- 46.
- 47.
Or, in the terms of Habermas (1987), an ideal speech community in which all members have an equal voice.
- 48.
In a later publication, Nagel (1969) implicitly endorses thesis 1. His argument starts from a view of sex that comes strikingly close to Bataille’s ideal: ‘Sex is the source of the most intense pleasure of which humans are capable and one of the few sources of human ecstasy. It is also the realm of adult life in which the defining and inhibiting structures of civilization are permitted to dissolve and our deepest presocial, animal, and infantile natures can be fully released and expressed, offering a form of physical and emotional completion that is not available elsewhere’ (Nagel 2002, p. 46; I gratefully quote from a copy that the author gave me during my stay at New York University Law School in 2006). Therefore Nagel demands maximum individual liberty, but, unlike Bataille, within a system of equal rights: ‘The case for toleration and an area of protected privacy in this domain is exceptionally strong. Relations between the sexes form an important aspect of the public space in which we all live, but their roots in individual sexuality are so deep that the protection of individual freedom within the public sexual space is an overwhelmingly important aspect of the design of a system of individual rights’ (id., p. 46). This also holds for pornography. Nagel maintains that, because of ‘the personal importance and great variety of sexual feeling and sexual fantasy and of their expression’ (id., p. 46), pornography belongs ‘firmly to the private domain’ (id., p. 51). Against radical anti-porn feminists Nagel argues that pornographic fantasies should be granted immunity from prohibitions in the service of gender equality, provided the material does ‘not directly harm specific women’ (id., p. 49).
- 49.
See my Twelve Loves (Maris 2002). Its successor, The Thirteenth Love (forthcoming), describes the collapse of the model into an Ovid -like battle of the sexes in which all is fair.
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Maris, C. (2018). Sex, Morality and Law. In: Tolerance : Experiments with Freedom in the Netherlands. Law and Philosophy Library, vol 124. Springer, Cham. https://doi.org/10.1007/978-3-319-89346-4_3
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