Sex and Reason
by Richard A. Posner

A well written and thoroughly researched study. It is most valuable for its history. It is of almost no value as a guide to what changes ought to be made to laws regulating sexual practices. Posner takes a social-utilitarian approach to legislation and a nonmoralistic approach to sexual practices. He delights in showing that the natural rights arguments of the Roman Catholic theologians and other opponents of abortion can be explained and made consistent only from a utilitarian perspective, because this means they ultimately come down to his level. But he never seems to realize that at least a natural rights approach can give guidance to lawmakers whereas his utilitarian approach fails time after time to reach any definite conclusions and is therefore useless.

Furthermore, social utilitarianism is statist and collectivistic in that it requires an agency that can act in behalf of society. Unfortunately for social utilitarianism, there is no agency that has permission from all the people in society to act as their agent, and social utilitarianism has no basis for judging the opinions and preferences of the majority.

Posner makes a good point about privacy as a Constitutional guarantee. Privacy and sexual freedom are not mentioned in the Constitution, but liberty and property are given protection in the 5th, 9th, and 14th Amendments. The Supreme Court wanted to legalize abortion, which they could have done on the ground of liberty, but if they recognized sexual liberty they would be under logical pressure to recognize economic liberty, since property is specifically mentioned in the Constitution. They didnít want to recognize the Constitutional limits on regulating property and economic activity, so they looked for a way to separate sexual freedom from economic freedom, and they accomplished this by inventing the right to privacy, which is implicit in the right to liberty.

Year Read: 2002

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