Sex Laws: Do They Pass the Reality Test?

If you know me, you know I’ve got an anti-authoritarian side. This is temperamental first and only then morphs into ideology. I noticed this about myself in my late teens. Because of that, I typically found myself siding w/libertarian in most areas of political theory. But I knew, even in high school, that pure anarchy wasn’t reasonable because even at the level of neighborhoods, people with short time preferences or low IQs would just live in chaos in a society bereft of deep organizing mythology as is our own. But I’ve never been sure just how far a modern society can or should go with respect to regulating individual morality outside of contracts and violence.

I’ve recently gained insight as I’ve revisiting Robert Jenson’s Systematic Theology: The Works of God and reading Camille Paglia’s Vamps and Tramps: New Essays. Paglia is a libertarian, Jenson is a social-realist of the sort that, if he tweeted, would be banned from Twitter (I mean, it’s difficult to describe how much “bad talk” Jenson makes…Paglia too, but from a different angle entirely).

Both of books were published around 2000. Here is a quote from each, exemplifying their points of view with respect to sexual law-making:

My libertarian position is that, in the absence of physical violence, sexual conduct cannot and must not be legislated from above, that all intrusion by authority figures into sex is totalitarian. (No Law in the Arena, Paglia)

We may get at the matter so: sexuality is the reality test of the law…Where law fails its reality test, it is indeed but a product of dominance…A sexually anarchic society cannot be a free society. For no society can endure mere shapelessness; when the objective foundation of community is systematically violated the society must and will hold itself together by arbitrary force. Nor is this analysis an exercise in theoretical reasoning; it merely points out what is visibly happening in late-twentieth-century Western Societies. (The Works of God, Jenson)

Two authors of above average intelligence see the opposite modes of legal reasoning as necessarily totalitarian!

Interestingly, Paglia revels in the “objective foundation of community” insofar as she sees the masculine and feminine archetypes as the result of evolution and necessary. She even chides the political left for failing to realize that the Christian right is concerned to preserve the inviolability of reproduction as the locus of argument in sexual ethics. She even says that the nuclear family will work (as an enforced social unit) “in a pioneer situation” where everybody is preoccupied w/survival and passing on wisdom to children.

Every emotional fiber of my being tends toward Paglia’s idea as I just prefer to leave people alone and let them do what they will and to be left alone in turn. But the fact of the matter is that the laws on the books tend to have the psychological effect of translating into assumed moral norms (I suspect that most of OT case law functioned this way in practice). And so having unenforced laws in favor of the traditional family unit, even from a utilitarian, evolutionary standpoint makes sense.

The idea that laws and the philosophical justification behind them need a reality test is absolutely the case and a law that accommodates, promotes, and is based on the reproductive necessities of the species is about as real as it gets.