Wednesday, August 16, 2006

Liberté, Égalité, Fratenité #1

No sign of Tinker yet, but I read on-line at that the prostaglandins in seamen are proven to increase the likelihood of you going into labour... So I have advised my sister to make haste and get herself down to the dockside as soon as possible.

Contrary to common misunderstanding, liberalism and egalitarianism do not automatically go hand in hand and one of the aims of these ramblings is to address this issue. However, in order to explain that properly, I am going to start by discussing an important example of when the aims of liberalism and egalitarianism coincided exactly. The following contains euphemisms of a adult nature, which are in fact very childish.

There was a time in Britain when no man could take a leisurely stroll up the Kyber Pass of an evening without the risk of arrest and imprisonment. This was a profound infringement on negative freedom; not being able to do what you like in the privacy of your own home. The laws in question actually applied to the act performed with men, women or animals, but were essentially used to prosecute homosexual men.

In 1957 the Wolfenden Report recommended the decriminalisation of using the servants' entrance and other male homosexual acts on the grounds that non-violent private practice between consenting adults caused no harm to anyone but (perhaps) the parties involved. Even then, any real or imagined harm individuals might bring on themselves was felt to be in a private moral sense, a matter of conscience for the individual, not the domain of criminal law.

This and many other UK legal decisions of the twentieth century adhered largely to John Stuart Mill’s Harm Principle. Basically this states that people should be allowed to do whatever they like without interference, the only condition being that their actions are not harmful to other non-consenting parties. A search for the best summary of this landed on this blog entry at Philosophy, et cetera. I could write an essay or too on this myself (indeed, I was obliged to some years ago) but the link is very good if you're interested.

As everyone knows, the recommendations of the Wolfenden Report were realised in law ten years later, which was a little too late for some (In between the Chatterley ban and the Beatle's White album).

In opposition to the Wolfenden Report were the likes of Lord Devlin and his famous man on the Clapham omnibus. He argued that any threat to public morality is a threat to society itself, and that public morality is, at least in part, defined by the feelings of an ordinary reasonable man. This reasonable man, who happens to be riding the omnibus to Clapham Common, presumably having found himself out of luck on Hamstead Heath…

In a sense, Devlin’s argument was for positive freedom. He was not suggesting that male homosexuality was against nature or against the Word of God and ought to remain criminal on those grounds.

Instead, imagine that this man on the Clapham Omnibus was both disgusted and preoccupied by the idea of male homosexuality. The mere idea that this might be happening caused him to be very upset and confused about his place in the world. In order to allow people the freedom to go through life undisturbed by morally corrosive thoughts of naked men giving vigorous consent in the privacy of their own homes… we must infringe upon the negative liberties of a minority.

However, this argument is very weak. For one thing, any argument that involves a reasonable person or a reasonable idea is circular. If I say, a reasonable person prefers jam to marmalade then my defining criteria for reasonable person would have to include a preference for jam over marmalade.

Secondly, there are perhaps many private behaviours which different non-participants would find abhorrent – certain religious practices for example, are entirely blasphemous to members of other religions. And whilst Devlin did use the phrase public morality, what he was talking about was private behaviour - he wasn't talking about anything that non-participants would be subjected to in any way.

Unchanging uniformity in private sexual practices, family life, religious belief and so on does not seem a particularly viable or desirable objective. Of course, the law steps in when someone is being subject to violence or abuse, and we have the institution of marriage and now civil partnership which provides certain securities in civil law (not criminal law). However, it would be a truly totalitarian world in which private behaviours were more closely regulated.

Right, well, these are important arguments and a very important precedent which I shall refer back to later. However, the vast majority of egalitarianism is concerned not with negative freedom, but with positive freedom; to be one's own master.

Once we achieved basic negative freedoms for women and minority groups which mean we are no longer literally or virtually enslaved, the chasm that lies between that point and the point where we become our own masters is all about positive freedom. And that's where, in some cases, liberalism clashes with some of the strategies employed to bring equality about...

This blog was originally entitled Liberté, Égalité, Enculé, but I am always afraid to swear in a foreign language in case it is much much ruder than I imagine it is.


kethry said...

I find all this really interesting, given what is currently going on politically. You do realise that there are moves afoot to try to criminalise sexual acts that may be abhorrent to others, but take places with consent between the two individuals, and that there are moves afoot also to make possessing imagery of such things punishable on the same level as possessing child pornography?

If you're interested in this aspect of stuff then there's a group of people who are fighting against this proposed legislation:

i look forward to reading the rest of the series *S*


The Goldfish said...

Thanks Keth,

Indeed, the Wolfenden Report set a very important precedent, but there has always been a dodgy area around S&M - for example, under UK law, you can no longer be prosecuted for harming yourself in anyway, but strictly speaking you can be prosecuted for harming another person, even if they were entirely enthusiastic at the prospect and refuse to co-operate in the prosecution.

Personally, I see no differentiation between S&M and activities such as boxing (in fact, I couldn't be sure, but I have never heard of anybody sustaining permanent injury from S&M, whereas boxing almost guarantees some brain injury on account of the fact it involves being bashed repeatly in the head).

I'm going to talk a bit about pornography soon; that's part of the reason I started this.

Obscenity law is a fascinating area, because it is so subjective and attitudes have varied in such weird and wonderful ways over history. Like how they didn't put pubic hair on medical and biological illustrations, because the pubic hair was considered obscene, whereas bald genitals was considered just fine and dandy...

kethry said...

"I'm going to talk a bit about pornography soon; that's part of the reason I started this."

ooh. goodie. can't wait!

"Personally, I see no differentiation between S&M and activities such as boxing (in fact, I couldn't be sure, but I have never heard of anybody sustaining permanent injury from S&M, whereas boxing almost guarantees some brain injury on account of the fact it involves being bashed repeatly in the head)."

I'm not 100% sure either - and hell, i do this S&M stuff! It depends on how you would define "permanent injury", i think. Obviously there are things that can be done that fall within the S&M lexicon (for example, nipple piercings done for that reason) which are permanent, but then are intended to be. Branding would be another example. I don't think i've come across any non-intentional serious permanent injuries, with the exception of accidents such as auto-asphixiation, or where guy X has girl Y tied up in this very isolated house, tied up so well she can't get out and then has a heart attack. such things i suppose can and do happen [and certainly sometimes permanent injury is done deliberately in non-consensual ways - but i don't think that is what we're discussing here], but then again, everyday life is full of risk - you can be at risk of permanent injury if you step into the road without looking where you're going!

As i understand it most of the current moves to put violent pornography on the same footing as child porn stem from the fear that this kind of porn encourages psychopaths and serial killers - in fact, what started the whole consultation in the first place was the murder of Jane Longhurst, where the murderer apparently spent hours looking at strangulation and necrophilia sites on the net. I've just finished watching a programme on C4, as it happens, about Ted Bundy and his claim that it was porn that led him down the path he chose to take... i think its actually quite offensive, to say that you, or i, or others around us, are so close to being that psychopathic that viewing that kind of imagery is going to be enough to tip us over the edge and turn us all into serial killers - which obviously hasn't happened, and isn't going to, because the majority of us take responsibility for ourselves and our own lives.

But i sense i'm preaching to the converted!

BDSM is in a wierd kind of legal position in the UK at the moment. The result of the Spanner trial says that marks left by S&M activities should be "transient and trifling".. which rules out love bites ... while at the same time, another case, where a husband was taken to court after a video was accidentally found showing him branding his wife - a video that was intended for their use only - has been thrown out of court, and the judge admonished the CPS, saying that he never wanted to see a similiar case in his courtroom again, and that the judiciary had no business intruding in the privacy of people's bedrooms. so.. branding's cool, lovebites ain't? pretty poor state of affairs. lol.

be interesting to see what you have to say - i look forward to it!

marmiteboy said...

Interesting stuff Goldfish.

I was wondering about tattooing too. Surely that is along the same lines as S&M. I have been permenantly scarred on several ocassions by someone inflicting very painful ink drawings on my body. Okay I asked for it, and even paid them money, but I want action!! We can't have people going round having the freedom to do what they want with their bodies.

Blimey next thing you know women will want the vote. ;-)

midwesterntransport said...

wait, what does encule mean? i only took high school french and we didn't learn any good swear words.

does it mean up the butt?

The Goldfish said...

Keth, I agree with you and hope to cover some of this stuff tomorrow if I can get my brain in gear.

Marmite, Tatooing, piercing and now of course, cosmetic surgery, have always been okay for some reason. And obviously is okay to consent to, for example, have your leg chopped off by a doctor if it is diseased and that disease is endangering your long-term prospects. But the law has historically been very sensitive about anything of a sexual nature - the buggery laws (they were called that) lasted into the sixties, even though this was always a method of contraception among married couples, let alone anything else. There were also 'sodomy laws' which covered pretty much any act which wasn't the act which makes babies - part of the controversy surrounding Lady Chatterley's Lover was that, apart from the fact it involved an adulterous affair, it made reference to both anal and oral sex. And the Chatterley trial took place in 1963.

Midwesterntransport, the verb enculer is slang for to ride up the Bourneville Boulevard, and enculé is one who partakes of that particular pleasure. (Altavista Babelfish gives a rather frank translation into American English) However, like I say, I don't know how rude it is - or indeed, given the nature of the word, how much homophobic baggage it might carry. It might be really terribly offensive, but like most of French, it sounds just great. ;-)