When I began thinking about how the fight over legalizing gay marriage would affect the fight over legalizing polygamy, I had a persistent sense that opposing gay marriage on logical grounds had been the wrong tactic for those who did not want to see it legalized. I eventually sort of, kind of short-handed that sense as the idea that institutions like marriage evolve organically, which is, of course, the argument Megan McArdle is making in her discussion of the unknowability of the possible repercussions of gay marriage. (You know, the really, really, really long post of hers I keep citing over and over.)
However, that didn’t really capture what my uneasiness was about. What I was really wondering was why it is invalid to simply say: I do not want to live in a society where gay marriage is legal. Or for me (since I am not worried about living in a society where gay marriage is legal): I do not want to live in a society where polygamy is legal.
I understand there are problems with this formulation since people can - and have - said: I do not want to live in a society where Blacks and whites live together on equal footing. Or, not so long ago: I do not want to live in a society where women can vote. And yet, still, I think there is validity to the majority of people in a society having a say in legal changes that will - even probably will - change the form of their society. Perhaps that is simply the definition of a conservative: someone who believes the status quo is the best way unless and until it becomes overwhelmingly clear to a majority of society that something has to change.
I was never sure quite how to write about this but I have now (via NRO Web Briefing) run across an essay at Public Discourse that discusses this in terms of pornography. I’m not sure I agree with the entirety of the article but this paragraph captures much of what I wanted to express but couldn’t quite manage (emphasis mine):
Even in defending what he believes is a moral right to pornography, Ronald Dworkin has identified the public nature of the interests damaged in communities in which pornography becomes freely available and widely circulates. Legal recognition of the right to pornography would, Dworkin concedes, “sharply limit the ability of individuals consciously and reflectively to influence the conditions of their own and their children’s development. It would limit their ability to bring about the cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which their own and their families’ sexual experience are likely to have these qualities in less degree.”
The author is, as I said, speaking of pornography and, more generally, of vice; he is also speaking of an area he believes has “profound moral significance”. However, I think the same ideas apply to any major changes to the fabric of society: women voting; equal rights for Blacks; equal rights for women; gay marriage; polygamy; massive immigration; widespread use of languages other than English; legalizing abortion; and, now, re-criminalization of abortion. All of these changes have limited or probably would limit people’s “ability to bring about the cultural structure they think best”.
This does not mean there is never a reason to make such changes. It does mean, at least to me, that “I do not want to live in a society where” should be given weight in arguments over such matters and, so long as a substantial majority is making that statement, it should not be overridden lightly.
Now that I’ve written that down, it appears so obvious as to be trivial. Surely that’s what democracy is about: a majority deciding what their society should look like. And yet it seems to me that we have largely lost that conception of democracy when it comes to cultural issues. We have so totally accepted the idea that all such issues are analogous to what the article’s author describes as:
pitting the “rights of individuals,” on the one side, against some amorphous “majority’s dislike of smut,”on the other
that we ignore the underpinnings of that dislike: “[t]he public interest in a cultural structure”. Rather than accept that such an interest exists and is both “concrete” and valid, we now require that such an interest be justified - and we always begin with the idea that it is virtually impossible to do so against any invocation of the rights of individuals.
I believe I understand why that is the case: there were cases - like racial equality and women voting - where the public interest was on the wrong side morally. I imagine there are and will be other such cases. But our reaction to those cases has been to throw out the very idea that there is a “public interest in a cultural structure”. That has helped individuals who want legal sanction to do things most of us would rather they didn’t but it’s not clear it’s helped society as a whole. And without a healthy society, individuals - whatever their private predilections - don’t stand much of a chance.
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You may find it helpful to consider Martha Nussbaum's arguments on this score. I think she's mistaken about disgust, for reasons I won't get into at this time in order that you might approach her writings with an unbiased mind; once you've had a chance to think through what she says, I'd be more than happy to talk it over.
Essentially, she distinguishes emotions related to harm -- which may be admitted to political debates about the kind of communities we shall have -- from emotions like disgust, which she thinks are pernicious. Some of her points are valid, but as I said, I'd prefer to go through the argument after you've considered it on its merits.
Thanks for the link, Grim. I read through it and realized it will take a few more readings for me to grasp her argument clearly enough to discuss it.
One thing that did catch my attention was her discussion of which emotions are valid in political discussions: anger, fear, compassion. What I am talking about is some type of emotion, I'm sure, but it is not any of those. Nor is it disgust or shame. Rather it is liking or simply preference (if preference can be said to be an emotion).
For example, the issue of mass immigration doesn't create in me anger, fear, compassion, disgust, or shame. Rather it creates in me "I like" statements:
I like living in a country where people are largely of European descent; that's what I feel comfortable with.
I like living in a country that isn't jammed with people; 300 million is already too many for me.
Nussbaum's argument is a little less sophisticated than it looks at first glance. It's mostly an expansion of S. S. Mill's harm principle. The reason she endorses anger, for example, is that it can be clearly linked to some harm being done (e.g., I'm mad at George because he's done X, Y, Z that has hurt me). If the emotion follows from a harm being done, it's legitimate; otherwise, it isn't.
(Disgust comes in for some additional abuse on the grounds that 'social science' 'proves' stuff about why we feel disgust. I'm always deeply suspicious about any claim rooted in any of the social sciences; they are weed-fields, in which the occasional flower is all the more precious for being an unlikely occurrence.)
In other words, I'm not offering you this argument to resolve your problems, but as a starting point for exploring your thoughts.
You might address the question by trying to show some harm that occurs when the majority's preferences are violated. One that occurs to me is that the good life is hard to live when one is being disgusted all the time. Particularly in a crowded community, it would seem to be important to construct a public space in which everyone can feel comfortable (an argument that Cassandra has convinced me of over the years). That means taking disgusting behaviors -- even ones we ourselves don't find disgusting, but know that others do -- and pushing them out of the public space.
However, the problem with that is that Muslims find bacon disgusting. Shall we force McDonald's to stop serving bacon on its cheeseburgers? Ah, well, what about the cheeseburgers? Hindus and some vegans find those disgusting. We could say thatMcDonald's is not public -- it's private property. If we do that, though, we lose the force of a lot of our anti-discrimination law, which is predicated on the idea that restaurants and hotels, etc., are 'public accommodations' even though they are privately owned spaces.
It's a difficult problem. Something like your majority-rules approach has been the traditional solution: 'no pornography in public, but bacon is fine.'
As you know, though, we've seen that chipped away for a long time -- and Nussbaum is essentially proposing destroying the rest of it, so that we accept the principle that other people should have the right to disgust us.
To stop that, you'll need to account for just why she's wrong. In other words -- alas! -- you'll need a rational principle to account for your right to irrational preferences.
So let's talk about that.
I apologize for the obvious typo in J. S. Mill's name.
so that we accept the principle that other people should have the right to disgust us.
To stop that, you'll need to account for just why she's wrong. In other words -- alas! -- you'll need a rational principle to account for your right to irrational preferences.
When you put it in those terms, I realize that I'm arguing I don't need a rational principle to account for my right to irrational preferences. In other words, I am changing the terms of the discussion.
That is also potentially a viable approach. You could make a claim from aesthetics -- that the good life is also the beautiful life, and that requires a certain capacity to eliminate disgusting things from the environment. Of course, aesthetics isn't a fully rational process, so we have to make room for different communities to have different standards.
You might look to Hannah Arendt's writings on Kant's third critique. She was giving these lectures just before she died, and they are built around a political approach based on Kant's aesthetics. It might be valuable to you, and will certainly be interesting. Arendt was a strong thinker with an extraordinary education.
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