About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Saturday, May 31, 2008

Hollywood versus the Mutants

When Hollywood movies depict mutated human beings — sometimes beautifully, grotesquely, or bizarrely transformed in appearance from the Homo sapiens norm — they draw upon traditions that are thousands of years old. Throughout recorded history, human myths, legends, and folktales have described recognisably anthropomorphic beings that nonetheless deviate from species-typical human morphology and/or possess greater than human powers.

Sometimes we also find them in travellers' tales and natural histories, which describe strange, yet humanlike, beings that dwell somewhere beyond the well-mapped places — perhaps, for pre-modern Europeans, in exotic regions of Africa or Asia — or beyond all maps in unknown lands, in Terra Incognita. These days, Terra Incognita is more likely to be another planet than an inaccessible part of the Earth, though the more literal idea of an unknown land on our own planet has not been lost entirely, as with the various versions of King Kong and the extraordinary killer apes in Michael Crichton's novel Congo and its movie adaptation.

The eternally-fascinating idea of a powerful quasi-human creature took its first recognisably science-fictional manifestation in the early decades of the nineteenth century, when Mary Shelley's Frankenstein depicted the use of science to manufacture life — the famous monster.

As described by Shelley, Victor Frankenstein has researched magical and similar lore before turning to science, and he exercises a power that had previously (in many earlier narratives) been portrayed as the domain of magicians or even gods. He is, indeed, a figure of Prometheus, bringing new powers to the human realm, but a quintessentially modern Prometheus, as intimated in the book's sub-title, one whose dubious gift (as Shelley portrays it) is the fire of science.

Then the idea of mutation gained in scientific rigour and credibility, opening up enormous possibilities for narratives of super powers and scientifically-rationalised transformations. Early-twentieth-century scientists began to speculate that spontaneous mutation of life forms played a role in the evolution of species, providing biologist with a far more powerful account of how natural selection could operate (since natural selection needs a source of differences, as well as environmental features that select some differences rather than others, and a coding mechanism by which "successful" variations can be passed on to later generations).

Biological science took a dramatic step forward in 1927, when H.J. Muller used irradiation to bring about mutations in fruit flies. The possibility of doing something similar to other animals, and particularly human beings, seized the imaginations of many story-tellers.

Stories of mutated humans first became common in the science fiction magazines of the 1930s, with mutation often providing a rationalisation for narratives that described the exploits of superhumans. Of the many science-fictional tales from the 1930s that concerned superhuman beings, Olaf Stapledon's novel Odd John (1935) is surely the best-known today and one of the finest of its kind ever written. Arguably, it was not equalled until the 1950s publication of More than Human, by Theodore Sturgeon. Here, Sturgeon depicts a group of mutants with psychic powers who can merge minds and form a single "gestalt" being of great power.

The explosion of the first atomic bombs in the 1940s, followed by continued nuclear testing in the 1940s and '50s, led to an even greater focus on genetic mutation in science fiction stories and movies. Among the mainstays of 1950s film were mutated monsters, such as the giant ants of Them! (1954). From this time, we see many more tales of mutated animals and humans. These include monsters, superheroes, supervillains, and freaks who belong readily to none of these categories but may nonetheless have strange powers.

Quite early in the history of narratives about superhuman mutants, authors saw the possibility that a superior race or species might be subjected to persecution and forced to struggle. This theme is present in A. E. Van Vogt's Slan (which started to be serialized in 1940), and has since become most prominent in the popular X-Men comic book, television, and movie, franchise (which commenced in the first X-Men comics in 1963).

In the world of X-Men, some mutants, most notably the charismatic and vastly powerful Magneto, seek world domination, whether out of personal megalomania or from a sense that this is the only way to survive the persecutorial tendencies of Homo sapiens. Magneto himself shows mixed motives, but his undoubted megalomania has been induced, in part, by persecutions that he suffered even before his powers developed fully. By contrast, the X-Men attempt to protect humanity and bring about a reconciliation of Homo sapiens and Homo superior.

An important feature of the X-Men universe is that the mutants are not presented with repugnance or fear — indeed, the fear of mutants expressed by many ordinary humans within the diegesis turns out to be counter-productive. When mutants are persecuted, it provokes some of the most dangerously powerful mutants to schemes of domination and revenge.

Most notably, the storyline is open to symbolic interpretions, according to which it is not about mutations and super powers at all, but about the persecution of minorities. Read in this way, the mutants can be analogues for many kinds of oppressed groups (such as African Americans, Jews, and homosexuals), and the many writers who have worked with the franchise have brought out these comparisons quite explicitly.

At the same time, the mutants can be read simply as social misfits and isolates — not unlike young people who read comic books and science fiction, and are frequently stigmatised as "nerds". For them (speaking here from observation and personal experience), even the "evil" mutants have a certain allure, and the battles between "good" and "evil" mutants function as a rather harmless power fantasy. Of course, Van Vogt's work depends on similar kind of identification by the readership: hence one half-mocking, half-serious catch-phrase of science fiction fandom, "Fans are Slans."

Popular culture is somewhat divided in its presentation of mutated humans, emphasising both that the idea is "cool" and that such beings could be dangerous to the rest of us who lack their powers. Here's an interesting discussion of Hollywood's depiction of superhuman or posthuman beings more generally, written by Charlie Jane Anders (with some interesting discussion in the comments that follow). Among other points, Anders suggests that the X-Men movies are something of an anomaly in Hollywood; their relatively sympathetic depiction of the superhuman mutants, who are their main characters, is atypical. Other Hollywood images of mutated human beings, so Anders argues, show them to be monstrous and dangerous, with no overt equivocation about it. Indeed, the most sympathetic Hollywood images of posthuman beings are those whose origin can be traced to superhero comics.

I'm sure that Anders is correct about this, and it's easily explicable. After all, there's plenty of fear in any community about others who may, for one reason or another, be disruptive of ordinary assumptions about how the world works. Give those suspicious "others" great powers, and they become even more troubling. At the same time, Hollywood seeks to entertain by the presentation of conflict, danger, and suspense, so it is always likely to depict anything new as dangerous, rather than innocuous or beneficial.

Yet Hollywood also gives a certain glamorous, alluring, "cool" quality to whatever science-fictional innovations it portrays, often cancelling out (all or much of) the technophobia implicit in its cultural products. As I and others have remarked in the past, the technologically-created dinosaurs of Jurassic Park and its sequels actually end up seeming more cool than they are dangerous, and much the same applies to the grim, merciless, unhesitatingly homicidal cyborg played by Arnold Schwarzenegger in The Terminator.

For reasons like these, Hollywood's anti-mutant war is a rather equivocal one after all — covertly, if not overtly, it tends to produce a sub-text that mutants are cool as well as dangerous (as are cyborgs, robots, modern-day dinosaurs, and aliens from space). In this sense, its texts are at war with themselves as much as with science and technology, and (short of some kind of large-scale sociological study) it can be difficult to gauge the net effect on audiences. The technophobic elements may predominate on balance — at least some of the time, or even much of the time — and they are certainly worth exposing and challenging, but the sub-text of techno-allure is also worth our attempts to trace and understand. There's much room for sensitive discussion and exploration of Hollywood's ambiguous war against the mutants.

Thursday, May 29, 2008

Get your Cthulhu fish

You can get your Cthulhu fish bumper sticker over here. Why settle for a lesser evil?

(Jenny sent me this, after getting it from Damien.)

Wednesday, May 28, 2008

The open letter from the arts community

Here, with no editorialising from me (except to say congratulations), but probably some format mistakes when I paste it in, is the open letter that Alison Croggon organised for signature by a large number of people who attended the 2020 summit, supporting Bill Henson and artistic freedom. I've made some comments of my own over on Alison Croggon's blog.



Open Letter in support of Bill Henson
From Creative Australia 2020 Summit representatives

Wednesday, May 28, 2008

As members of the Creative Stream of the Australia 2020 Summit, we wish to express our dismay at the police raid on Bill Henson’s recent Sydney exhibition, the allegations that he is a child pornographer, and the subsequent reports that he and others may be charged with obscenity.

The potential prosecution of one of our most respected artists is no way to build a Creative Australia, and does untold damage to our cultural reputation.

The public debate prompted by the Henson exhibition is welcome and important. We need to discuss the ethics of art and the issues that it raises. That is one of the things art is for: it is valuable because it gives rise to such debate and difference, because it raises difficult, sometimes unanswerable, questions about who we are, as individuals and as members of society. However, this on-going discussion, which is crucial to the healthy functioning of our democracy, cannot take place in a court of law.

We invite the Prime Minister, Mr Rudd, and the NSW Premier, Mr Iemma, to rethink their public comments about Mr Henson’s work. We understand that they were made in the context of deep community concern about the sexual exploitation of children. We understand and respect also that they have every right to their personal opinions. However, as political leaders they are influential in forming public opinion, and we believe their words should be well considered.

We also call on the Minister for Environment Heritage and the Arts, Mr Garrett, to stand up for artists against a trend of encroaching censorship which has recently resulted in the closure of this and other exhibitions.

We wish to make absolutely clear that none of us endorses, in any way, the abuse of children. Mr Henson’s work has nothing to do with child pornography and, according to the judgment of some of the most respected curators and critics in the world, it is certainly art. We ask for the following points to be fairly considered:

1. Mr Henson is a highly distinguished artist. His work is held in all major Australian collections including the Art Gallery of NSW, Art Gallery of SA, Art Gallery of WA, National Gallery of Victoria and the National Gallery of Australia.

Among international collections, his work is held in the Solomon R Guggenheim Museum, New York; the Victoria and Albert Museum, London; San Francisco Museum of Modern Art; the Los Angeles County Museum of Art; the Denver Art Museum; the Houston Museum of Fine Art; 21C Museum, Louisville; the Montreal Museum of Fine Art; Bibliothèque Nationale in Paris; the DG Bank Collection in Frankfurt and the Sammlung Volpinum and the Museum Moderner Kunst, Vienna.

Major retrospectives of Mr Henson’s work at the Art Galleries of NSW and Victoria attracted more than 115,000 people, and produced not one complaint of obscenity. His work has also been studied widely in schools for many years.

2. Mr Henson has been photographing young models for more than 15 years. Until now, there has been no suggestion by any of his subjects or their families of any abusive practices. On the contrary, his models have strongly defended his practice and the feeling of safety generated in his process, and have expressed pride in his work.

We suggest that the media sensationalism and the criminalisation of laying charges against Mr Henson, his gallery and the parents of the young people depicted in his work, would be far more traumatic for the young people concerned than anything Mr Henson has done.

3. The work itself is not pornographic, even though it includes depictions of naked human beings. It is more justly seen in a tradition of the nude in art that stretches back to the ancient Greeks, and which includes painters such as Caravaggio and Michelangelo. Many of Henson’s controversial images are not in fact sexual at all. Others depict the sexuality of young people, but in ways that are fundamentally different from how naked bodies are depicted in pornography. The intention of the art is not to titillate or to gratify perverse sexual desires, but rather to make the viewer consider the fragility, beauty, mystery and inviolabilty of the human body.

In contrast, the defining essence of pornography is that it endorses, condones or encourages abusive sexual practice. We respectfully suggest that Henson’s work, even when it is disturbing, does nothing of the sort. I would personally argue that, in its respect for the autonomy of its subjects, the work is a counter-argument to the exploitation and commodification of young people in both commercial media and in pornographic images.

Many of us have children of our own. The sexual abuse and exploitation of children fills us all with abhorrence. But it is equally damaging to deny the obvious fact that adolescents are sexual beings. This very denial contributes to abusive behaviour, because it is part of the denial of the personhood of the young. In my opinion, Mr Henson’s work shows the delicacy of the transition from childhood to adulthood, its troubledness and its beauty, in ways which do not violate the essential innocence of his subjects. It can be confronting, but that does not mean that it is pornography.

Legal opinion is that if charges were laid against Mr Henson, he would be unlikely to be found guilty. The seizure of the photographs, and the possible prosecution of Mr Henson, the Rosyln Oxley9 Gallery or the parents of Henson’s subjects, takes up valuable police and court time that would be much better spent pursuing those who actually do abuse children.

4. Perhaps the most distressing aspect of the trial-by-media to which Mr Henson and his work has been subject over the past few days, is how his art has been diminished and corrupted. The allegations that he is making child pornography have done more to promote his work to possible paedophiles than any art gallery, where the work is seen in its proper, contemplative context. It is notable that the attacks on Mr Henson’s work have, almost without exception, come from those who are unfamiliar with the photographs, or who have seen them in mutilated or reduced images on the internet.

If an example is made of Bill Henson, one of Australia’s most prominent artists, it is hard to believe that those who have sought to bring these charges will stop with him. Rather, this action will encourage a repressive climate of hysterical condemnation, backed by the threat of prosecution.

We are already seeing troubling signs in the pre-emptive self-censorship of some galleries. This is not the hallmark of an open democracy nor of a decent and civilised society. We should remember that an important index of social freedom, in earlier times or in repressive regimes elsewhere in the world, is how artists and art are treated by the state.

We urge our political leaders to follow the example of Neville Wran, when in 1982 a similar outcry greeted paintings by Juan Davila. At that time, Mr Wran said: “I do not believe that art has anything to do with the vice squad”. With Mr Wran, we believe the proper place for debate is outside the courts of law.

Alison Croggon


Louise Adler, CEO & Publisher-in-Chief, Melbourne University Publishing
Geoffery Atherden, Writer
Neil Armfield, Artistic director, Belvoir St Theatre
Stephen Armstrong, Executive Producer, Malthouse Theatre
James Baker, Tax advisor and accountant
Geraldine Barlow, Curator
Larissa Behrendt, Professor of Law, University of Technology Sydney
Cate Blanchett, Actor
Daryl Buckley, Musician
Leticia Cacares, Theatre Director
Karen Casey, Visual Artist
Kate Champion, Choreographer, Artistic Director Force Majeure
Rachel Dixon, New media developer
Phoebe Dunn, Chief Executive Officer, Australian Commercial Galleries Association
Jo Dyer, Executive Producer, Sydney Theatre Company
Kristy Edmunds, Artistic Director, Melbourne International Festival of the Arts
Saul Eslake, Economist
Richard Gill, Artistic Director, Victorian Opera
Peter Goldsworthy, Writer
Marieke Hardy, Writer and broadcaster
Sam Haren, Artistic Director, The Border Project
Frank Howarth
Cathy Hunt, Creative consultant
Nicholas Jose, Writer
Andrew Kay, Producer
Ana Kokkinos, Film maker
Sandra Levy
Matthew Lutton, Theatre director
Nick Marchand, Artistic Director, Griffin Theatre
Sue Maslin, Producer, Film Art Doco Pty Ltd
Elizabeth Ann Macgregor, Director, Museum of Contemporary Art
Callum Morton, Visual Artist
Rosemary Myers, Artistic Director, Windmill Performing Arts
Rachel Healy, Director Performing Arts, Sydney Opera House
Liza Lim, Composer
Jan Minchin, Director, Tolarno Galleries
Helen O’Neil, Executive producer
Charles Parkinson, Artistic Director, Tasmanian Theatre Company
David Pledger, Theatre director
Marion Potts, Theatre Director
Katrina Sedgwick, Festival Director, Adelaide Film Festival
Mary Vallentine, Arts manager

Additional signatories:

The following support the appeal contained in this letter without necessarily endorsing the detailed argument:

John Coetzee, Novelist
Ramona Koval, Writer and broadcaster
Julianne Schultz, Academic

Tuesday, May 27, 2008

This year is going so quickly!

Yes, I know: it's a banal thought. All the same, I can't believe it's the end of May already. I had my last classes for the semester today, designed around my best advice to my students about exam preparation. Although there's a mountain of marking to descend on me, that's the teaching for another semester over, and it'll soon be winter again. It doesn't seem that long since the events (some good, some very bad) of summer.

Monday, May 26, 2008

Scandalous mischief

Without too much editorialising, I'd like to publish this link to an earlier (2005) brush that I had with freedom of expression, teens-and-sex and the law, etc., issues. What was a stake here was rather different, in some respects, from the Bill Henson incident - arguably, the legislation that was proposed by the Victorian government was more draconian (whatever it actually meant), particularly in that it would have prevented the depiction of anyone who was under, or looked under, eighteen in a sexually indecent manner (whatever that is, exactly). Still, the article may shed some light on the debate.

In this case, the government did actually water down its proposed legislation, thanks to opposition from the arts community.

Victorian censorship legislation, in so far as it applies to child pornography, now refers to the age of sixteen - not that that would help Henson. For someone who merely possesses child pornography (rather than creating it) there is a defence of artistic merit but it has only limited application and would again not help Henson.

I played only a tiny role back in 2005, in giving some quotes to Helen Razer. Still, the government did take some notice when concerns were expressed.

What this incident confirms for me is that there are social and political forces - though it was never clear, with the Victorian legislation, where the impetus came from - that can push supposedly enlightened governments in a very restrictive direction.

For any comments from readers.

Edit: I've edited this post a few times in an endeavour to get it as legally correct as I can in the limited time I have (given that I don't have anyone I can charge for my time). I've now had a look at what appears to be the relevant legislation under which Henson would be charged in New South Wales. See section 91H of the NSW jurisdiction's Crimes Act.

Interestingly, this section has a quite sweeping defence provision that appears relevant: "It is a defence to any charge for an offence under subsection (2) or (3) ... (c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose ..."

This would seem to give Henson a good defence.

However, there's another section that may apply, relating to using children under 14 for pornographic purposes.

I guess we need to wait and see what charges, if any, are laid. Meanwhile, I'll go on questioning the current witch-hunt.

New issue of Cosmos

The new issue of Cosmos magazine contains my review of Francisco J. Ayala's Darwin's Gift to Science and Religion. Ayala has some good material in defence of evolutionary theory, but the most interesting aspect of the book, from my viewpoint, is the way he attempts to use the fact of evolution to excuse God for the many imperfections, as we see them, with the world. The world contains various evils, says Ayala, because it is not the product of God's direct design.

However, as I observe in the review, an all-powerful, all-knowing deity need not resort to such clumsy and uncertain mechanisms as those of Darwinian evolution to bring about whatever world it wants. If this being is also benevolent, why did it not engage in direct design of a world without the evils that Ayala discusses?

The issue also contains a review by Jenny of Claire Brock's The Comet Sweeper, and a shortish article by me on Australian science fiction (I do have a nit-pick here, though, since my name has ended up being spelled incorrectly in the article's by-line; it looks like a sub-editor made a slip and forgot that "Russell" has two l's). The article has a little bit to say about Greg Egan's work, as you'd expect, but I haven't yet read Greg's new book, Incandescence. I'll be getting to that soon, and look forward to reviewing it for a future issue.

Then there's all the main articles up the front, including some interesting stuff about robotics.

Cosmos is a beautifully presented magazine whose content seems to get better all the time. Maybe it's worth your while to check out the current issue next time you're in an Australian newsagency and have time to browse the magazine rack.

Saturday, May 24, 2008

The Henson debate: take a stand for art and freedom

Right now, Bill Henson, an artistic photographer of international repute, stands in danger of criminal proceedings over certain photos that were to appear in a (now-cancelled) exhibition of his work in Sydney.

The photos concerned were nude portraits of young teenagers. Nobody with any sense - I don't count our deplorable prime minister, Kevin Rudd, or our equally deplorable opposition leader, Brendan Nelson - disputes the artistic merit of the portraits. Nor does there seem to be any doubt that Henson acted with all propriety in obtaining the permission of the subjects' parents. We are not confronted with a case of child abuse. Moreover, as The Australian newspaper alludes to in a wishy-washy editorial today, there is a tradition in visual art of depicting emerging teenage sexuality.

Yet, there is a prospect that Henson will be prosecuted for, in effect, creating child pornography. The New South Wales police are investigating. If the material is considered child pornography, then if you so much as attempt to inform yourself by searching for the photos on the Internet you risk being charged with a crime.

This is outrageous; if child pornograpy laws are broad enough to have these effects then they urgently need to be narrowed.

As has happened so often in human history, we are seeing a witch hunt by nasty-minded prudes and panic-merchants - among them, smiling Kevin who is proving once again that he's little better than his troglodyte predecessor - against the work of a genuine and talented artist. There are no shades of grey here: we have every reason for anger at such repression.

The extensive popular support that the witch hunt appears to be receiving is further proof that we have a long way to go before this is a genuinely free society, and we can be sure that we've shaken off the influence of puritanical religious traditions. Goddammit, this is happening in Sydney, Australia, of all places: a sophisticated international city, not some backwater of illiterate red-necks in the American bible belt.

Please do whatever you can to stand up for art and freedom of expression.

Wednesday, May 21, 2008

Same-sex marriages today, polygamous marriages tomorrow?

Over at the Bad Idea Blog, "Bad" notes that advocates of same-sex marriage often simply dismiss slippery slope arguments such as the claim that judicial rulings in favour of same-sex marriage would lead to the legal recognition of polygamy.

This is a horrible-result type slippery slope argument against gay marriage ... or it could be framed as a reductio ad absurdum argument against reasoning that is said to support same-sex marriage. But one problem for such slippery slope arguments is that they are sound only if the outcome at the bottom of the slope really is horrible. Similarly, reductio ad absurdum type arguments succeed only if what is entailed by the impugned premises and reasoning really is absurd. However, I see nothing obviously horrible about a society that is prepared to register polygamous marriages (assuming all parties involved are legally competent). Polygamous arrangements are already perfectly legal; they are just not officially "marriages" in most societies. If they were given such legal recognition, I don't see why that is so obviously a horrible outcome.

Similarly, if a legal argument in favour of same-sex marriage also entails that the state should recognise polygamous arrangements as "marriages", I see no evident absurdity.

Hence, the argument simply fails as a rational argument against same-sex marriage; strictly speaking, nothing more need be said.

However, I'll say some more anyway. Nothing above should be taken to suggest that I hold up polygamous marriages as an ideal. It certainly doesn't mean that they should become the norm for everybody to aspire to, as in some religious or cultural traditions. But liberal societies do not require that we all live in a way that is judged to be ideal or that any arrangement that is recognised officially is thereby promoted by the state as a norm for everybody.

At the Volokh Conspiracy, there's a brief attempt by Dale Carpenter to distinguish gay marriage from polygamous marriage. Although "Bad" is impressed by the attempt, I must say that I find it rather flimsy (I must, in fairness, also point out that Carpenter has written at greater length elsewhere, and I encourage interested readers to follow his links).

I don't have time to give my full reasons here, but all the arguments against recognising polygamous marriages strike me as contrived. Perhaps the strongest point against polygamy is that there might be social difficulties if polygamous marriages (in the form of polygyny) became very widespread. But, again, polygyny is already legal, just not officially recognised as "marriage". Nothing in the law prevents me from going off tomorrow to live in orgiastic, but perhaps distracting and exhausting, bliss with my four favourite women (who probably know who they are). What prevents it is that they'd laugh at me if I offered such a suggestion. More generally, what prevents polygyny in Western societies is just that women (far more often than not) don't and won't want it.

We do not usually take official action to discourage something merely because it would cause social problems if "everybody" (or, more accurately, a large fraction of the population) did it. Rather, we assume the reality of social pluralism - that different people are likely to live in accordance with many different systems of values.

If Western states began to recognise polygamous marriages it is doubtful that this would have any great impact at all on (for example) the percentage of polygynous arrangements or the percentage of sexually frustrated men, let alone the percentage who might thereupon become alienated and possibly violent. The fact is that most women would remain just as wary as they are now about entering into long-term polygynous arrangements. While some women probably benefit from polygyny in some circumstances, most Western women would, quite understandably, not be willing to enter into such asymmetrical sexual arrangements at all - and certainly not long-term or without the option of easily leaving and finding alternative partners.

(That said, some women from some cultural traditions, such as the Maasai, may actually prefer to enter into a long-term arrangement where they have female companionship within the arrangement. Such preferences are not out of the question. But if, by chance, a tiny number of such women are to be found in Western societies, why not cater for their preferences? Some value systems may seem strange to most Westerners, but, in the absence of significant harms, that doesn't entail that the state should consider them unwelcome.)

For a different reason, it is weak to claim that it's inexpedient to recognise polygamous marriages because it would require modifying such things as probate law. The modification might not be enormously difficult in principle, and the fact is that such problems could already arise in circumstances where, for example, a participant in some kind of legal (but unofficial) polyamorous arrangement dies intestate. If the opportuntity were taken to tidy this up, it might actually yield intuitively fairer results.

Polygamous marriages are not the ideal, but there may not be a single ideal. Societies where polygyny is held out as the norm are thereby likely to inherit some problems, but I am not going to condemn polygamists' view of the good for that reason. Even if I were inclined to do so, based on personal moral beliefs or social concerns, I don’t think that the state should be doing so in a liberal society. So, if we are going to give state recognition to marriage at all, why not to polygamous marriages as well (provided all involved are competent adults to the same extent as is required for "ordinary" marriage)?

In all, I consider this particular argument against same-sex marriage weak, because what is (supposedly) lying at the bottom of the slope does not seem all that horrible. If we end up officially accepting polygamous marriages, so be it. I believe that people who run this argument against same-sex marriage are essentially appealing to irrational fear and prejudice.

But there's another possibility. Perhaps what I've written so far is wrong, and some compelling public-policy reason can be identified for not recognising polygamous marriages in particular. This would, in other words, be some great problem if polygamous marriages were recognised by the state. In that case, the result is horrible after all - but the slope is not slippery. It's not slippery because, on those facts, a principled distinction can be made between recognising same-sex relationships as marriages and recognising polygamous arrangements as marriages.

All in all, this policy issue about same-sex marriage is not a case where you can, with success, simultaneously argue that the slope downhill is slippery and that the outcome at the bottom of the slope is (on appeal to reason, rather than mere prejudice) horrible.

That, of course, is the common problem with horrible-result arguments. It is very rare that such an argument can succeed by showing simultaneously that the slope is slippery and that the result is horrible. Generally, the more horrible the result the less slippery the slope.

All that said, I have repeatedly argued elsewhere that the optimal solution is not the official recognition of many different kinds of relationships as marriages.

Rather, we should simply continue to allow individuals to enter into whatever sexual, familial, and domestic relationships they want, with whatever support they can muster from their cultural and religious communities, their families, and their friends; at the same time, the state should cease recognising relationships that meet some prescribed template as being, officially, "marriages" (and so registrable as such by some public agency).

On that scenario, anyone - gay or straight, monogamous or polygamous, or whatever - can have a marriage ceremony, call themself "married", and have the "marriage" conducted and recorded by the religious or other organisation of their choice. Government forms would no longer ask people whether they are married, and the state would be neutral about people's personal relationships. People would remain free to enter into contracts, trust deeds, etc., to determine the distribution of property on breakdown of a relationship. Courts and legislatures could continue to develop principles to deal with unconscionable agreements or to divide assets in the absence of agreement (in the absence of appropriate legislation, courts began to develop such principles some decades ago for de facto couples, essentially expanding the operation of the law of trusts to fill what was then a serious gap).

I'll say once more, for the record, that I do favour political policies to introduce provision for same-sex marriage, but only as a realistic compromise in current circumstances, not as the optimal long-term solution in a liberal society.

Saturday, May 17, 2008

Fukuyama on human dignity, revisited

I first posted this back in November 2006. I thought it was worth digging out again without too much editorialising about it, given that the President's Council on Bioethics (of which Francis Fukuyama has been a mainstay) has recently put out a huge report on the subject of human dignity. The report is (seemingly) an elaborate attempt to defend the concept.

My readers are likely to be more familiar with a current New Republic article by Steven Pinker, vigorously slamming the report. If you haven't yet read it, its title, "The Stupidity of Dignity", will give you an accurate idea of Pinker's tone.

Both the Council's report and Pinker's article in response will be worth discussion in their own right, but it may be some time before I have a chance to read the former. As to the latter, I think that Pinker's dismissal of "dignity" is totally justified.

I argue below (in the 2006 post) that there is no such thing as human dignity in the sense that Fukuyama and his pals need to get their bio-Luddite moral arguments off the ground. Of course, the word "dignity" does have an ordinary, perfectly familiar meaning, and what we call "dignity" is often observed: e.g., we speak of the "dignity" of people who maintain a certain composure in trying circumstances. It is a certain quality of bearing and attitude that strikes us as somehow noble, or resistant to humiliation, or well, "dignified". There is a sense of proper - not foolish or excessive, or offensive - pride.

In that sense, dignity is a good characteristic to have and display, and it is deplorable when we strip it from people. But that is something rather different. In the greatly-inflated sense that Fukuyama and others want, "human dignity" does not exist.

As I re-read and ponder Fukuyama's Our Posthuman Future, I'm struck once more at how the workings of a powerful intellect end up producing lame conclusions on matters of policy.

Fukuyama's quest is to defend the idea that we all possess human dignity: some unique property that entitles each of us, equally, to a special moral respect that does not apply to the rest of creation. What, however, could such a mysterious property actually be? It could come from God, perhaps, if we share in some supernatural divine spark with our Creator, but that answer will not cut much ice in secular societies like Australia, or among secular people in a largely religious, but still pluralist, society like the US. No, Fukuyama needs a secular foundation for human dignity, but this is hard to find.

Indeed, the quest seems to be hopeless; I claim that there simply is no such thing as human dignity.

However, let's see what Fukuyama does with the problem. He thinks that what gives us our special moral worth is the fact that we are complex wholes with a range of capacities that exceed anything found among non-human animals - capacities relating to rationality, moral choice, sociability, sentience, consciousness, language, and so on. This is a richer range of elements than we see in the notion of Lockean personhood, with its emphasis on reason and self-consciousness, including a consciousness of ourselves as existing in time.

For myself, I want to argue that Lockean personhood is important, not because it grounds some mysterious quality of human dignity but because it is a necessary condition for anything to be vulnerable to certain kinds of harms to their interests. That vulnerability provides one basis for giving moral consideration to beings that possess it. Accordingly, if some non-human animals possess Lockean personhood they are at least good candidates for greater consideration than other animals that are sentient but not persons. What sort of consideration we feel we should give something will not depend merely on whether or not it gets over the threshold of Lockean personhood - it will depend on many other things, including the full range of its actual properties and vulnerabilities. But Lockean personhood is going to be a very important concept within any plausible moral system.

I'm not opposed to Fukuyama providing a richer range of elements - some of these may be important, though not for the reasons that he appears to think. One good reason is that they may create new vulnerabilities. For example, a person with a moral sense may be vulnerable to being torn apart psychologically in ways that may not apply to all Lockean persons. That may influence how we should treat such a person - for example, we can think of horribly cruel choices that people can be confronted with in which they are coerced or manipulated to act against their deepest moral beliefs. That is a vulnerability that a human being might have but which might not apply (though I don't totally rule it out) to any non-human animals that we know of, even if they are Lockean persons.

As far as I can see, Fukuyama does not make this point - or anything like it. Instead, he seems to see some objective moral value in the complex range of human capacities, without needing to invoke the vulnerabilities that these capabilities lead to. In particular, he places a great deal of emphasis on the value of the full range of human emotions - he will be suspicious of any technology that reduces that emotional range.

This way of looking at things creates all sorts of problems. The most obvious, as Fukuyama realises, is that it is not a theory of equal human dignity, since these capacities are present in human beings to varying degrees and of course some of them are deficient (or altogether missing) in some human beings - e.g. very young children and people suffering intellectual disability or dementia. It is no good saying, as Fukuyama wants to do, that it is impractical to make discriminations because it is actually all too easy to make them with some degree of accuracy, at least in respect of such things as reasoning ability, linguistic skills, and moral virtue. We doubtless do value all these things that Fukuyama refers to, but they don't confer a mysterious human dignity (indeed, we would value them in some new species that might turn up) and they certainly cannot underwrite equal human dignity.

It gets worse. Such criteria are no more able than criteria to do with sentience, or to do with Lockean personhood, to explain why any moral worth should attach to an early embryo, or why, as Fukuyama argues, we should heavily regulate embryo research. Fukuyama realises this, of course, and he has to fall back on notions of potentiality to develop into a being with the necessary attributes for human dignity. But this immediately raises all the same problems that accompany the claim that an embyro is a (merely) potential Lockean person. Potential to be morally considerable at some later time does not give any basis for moral considerability now.

Furthermore, the theory has no bite if it is meant to be used to oppose human reproductive cloning, as no one proposes that we use cloning to create children with less than the normal human capacities and complexity. The theory might be helpful in ruling out some kinds of genetic engineering, but again no one much wants to engineer children who are less capable and complex than normal children. The aim is more likely to be to produce greater than normal complexity and capacities of the kinds that Fukuyama values so much.

In short, the theory has shortcomings as a theory of (equal) human dignity. Worse, even if it could otherwise be made to work it would not take Fukuyama to the sorts of policy positions that he finds attractive.

There is much to admire in Fukuyama's writings. He is often clear-headed, and he certainly writes with considerable surface lucidity (any confusion and unclarity is largely hidden below the easily-readable prose). But he appears to be committed to moral beliefs and policy prescriptions that simply don't follow from his philosophical arguments, with the result that Our Posthuman Future often seems to be one giant non sequitur. It is worth reading for its clear-headed discussion of why it makes sense to believe in something like "human nature", and why it is difficult to move from there to belief in "human dignity". The conclusions, however, are a squib. Fukuyama should have concluded that there is no property of human dignity, whatever has been thought in the past, and that our moral and legal norms must be justified (to the extent that they can be at all) on some radically different basis

Friday, May 16, 2008

Get Leviathan out of the marriage business

The Supreme Court of California has struck down marriage laws that limit marriage to people of opposite sexes, thus making same-sex marriage legal in America's richest state. I can't say whether the legal reasoning is sound until I actually find time to read the judgment. From what I've heard so far, it may turn on an expansive reading of constitutional "equal protection" provisions. This is an approach that I've never had a lot of time for from a strictly legal viewpoint, but such reasoning is now a feature of American constitutional law. In any event, the legal doctrines involved probably have little application outside of the US, which has built up a unique and massively history-dependent body of constitutional jurisprudence.

In all the circumstances, it's a good result for gays and for modern concepts of sexual liberty, but a better long-term outcome would be for Leviathan - the state - to get out of the marriage business entirely.

If people want to be married according to some religious or traditional idea of "marriage", fine. If they want to have some kind of ceremony to mark the occasion, great. If they invent some sort of non-traditional arrangement and want to call it a marriage (with a nice ceremony thrown in), I wish them well. I don't care whether they're the same sex, or different sexes, or how many of them there are, or whether the arrangement includes an intelligent squid from Alpha Centauri (as long as the squid understands and is willing). However they want to live their lives, I'll argue for their legal right to do so and I'll hope that they receive much love and support from their families, friends, and communities.

But the state should not be deciding what will or will not be given the social prestige that goes with "marriage". As long as all concerned are of appropriate maturity, let people simply engage in whatever sexual relationships and means of family formation they want. If they want to mingle financial assets and other contributions, or if they have kids, there needs to be a body of law to sort out disputes when relationships break down - but that's all perfectly practical. It doesn't even require a lot of additional regulation: if necessary, the courts are quite capable of applying well-established legal and equitable principles to get fair results.

What may be needed, especially in the US, is legal reform to ensure that people don't lose valuable quasi-public benefits, such as health insurance, by no longer being regarded by the state as in the privileged status of "married". Such issues might delay the practicality of what I'm advocating, but in principle the state should leave the entire marriage business to the individuals immediately concerned.

Tuesday, May 06, 2008

Rudd blocks civil unions bill in ACT

If anyone wants evidence that Australia is not quite a post-religious country and that pious viewpoints continue to exert too much political influence, even here in the Great Southern Paradise, well here's something for you to latch onto.

The government of the Australian Capital Territory (the area carved out of New South Wales to house Canberra, the national capital) is trying to enact legislation to provide for civil unions of gay couples. However, the federal parliament has the power to block ACT legislation (indeed, it has sweeping power under the Australian Constitution to enact laws for the territories, as opposed to the states). On a number of occasions in recent times, federal parliament has moved to block or overturn progressive territory-level legislation.

In this case, the federal government led by the smiling conservative, Kevin Rudd, has been negotiating with ACT politicians. It threatened to block the legislation because it provided a form of civil union supposedly too close to mimicking marriage. Apparently, the sticking point was that the law would provide for a ceremony that Rudd and company considered marriage-like. In the face of the feds' threat, the ACT will now enact watered-down legislation.

Federal parliament does ultimately have the power to override laws enacted by the parliaments of the ACT and Northern Territory, but that power dates back to an earlier time when the territories were small in population, and weak in expertise and infrastructure. Things have changed since then, and one might question the propriety (as opposed to constitutional legality) of federal politicians interfering to overturn duly enacted legislation from the ACT parliament - if it had ever come to that. But in any case, why should the federal parliament interfere in an issue such as this - effectively to stamp its own traditional view of marriage on the ACT's local public policy? If ever there was an issue where the federal parliament should have butted out, this is it.

When the Rudd government was elected (with my vote, amongst so many others), I recall expressing scepticism to friends as to how big an improvement it would be on the reactionary regime that preceded it. My friends convinced me that I was too pessismistic, but now I wonder.

As for the broad political issue of marriage, I take the view that the state should keep out of the marriage game altogether. What sexual, domestic, and child-rearing arrangements competent adults want to enter into should be (as it by and large is) up to them. Already, the criminal law leaves these things alone - we have no laws against adultery, fornication, polyamorous arrangements, or gay sex, and nor should we. The apparatus of government should interfere only to protect the welfare, and ensure a reasonable standard of education, of children. It should not give its imprimatur to, say, the arrangements of heterosexual couples rather than homosexual ones.

If people of any sexual orientation want to have a religious wedding and be registered as "married" by their cult of choice, large or small, that should also be up to them, but the state should keep aloof from it.

On this approach, the courts would still need to settle disputes when relationships break down (if there are children involved or issues of monetary/non-monetary contributions), but there's a wealth of experience in the courts with settling such issues, and the principles wouldn't need to change in any massive way if the state stopped registering certain arrangements as "marriages". (Even now, judge-made law can deal with situations that fall outside of any legislative framework; the courts can fall back on equitable doctrines such as those relating to constructive trusts.)

My view that the state should essentially opt out of the marriage business is, however, an idealistic and long-term option. Meanwhile, since the state goes on recognising "marriages" for heterosexual couples, I don't see why it shouldn't do likewise for homosexual couples. Not doing so tends to suggest that there is something second rate about gays' relationships, and perhaps about them as citizens. It's an unneeded slap in the face.

The most that can be argued against providing by legislation for gay marriage is that if the state does not bother to provide for it, and if it gradually brings all benefits to de facto heterosexual couples into line with those for married couples, and if it treats gay couples like heterosexual de factos ... then it will, indeed, eventually pretty much opt out of the marriage game by stealth. Eventually marriage will be legally meaningless. I would respect a politician who argued for that approach explicitly in the public debates, but of course it will never happen.

But let's come back to here and now. This week, we have seen federal interference with a planned territory-level arrangement that wouldn't even be called "marriage". The feds have gone out of their way to interfere, apparently to protect the symbolism of heterosexual marriage as some kind of religious sacrament or at least something with quasi-religious significance in the eyes of the state. I think that this particular act of bastardry, as John Wilkins has called it, stinks like the proverbial dead cat. I hope it's not too much of a sign of what we can expect in future from the smiling conservative and the Labor Party crew.