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Notes -
I agree with you to this point.
This doesn't seem quite right, however. While I'm not sure where it takes the argument, exactly, I feel it necessary to point out that both adultery and fornication have been, and in many places still are, sex crimes. They are not prosecuted in the same way as groping, which is not prosecuted in the same way as rape, so it does seem like societies are capable of recognizing gradations while still maintaining a clear line (essentially: formal social approval in the form of a marriage certificate) between "yes" and "no."
In the 1960s/1970s, feminism and the hippie movement decoupled sex from marriage on the view that this was liberating individuals from the shackles of social opprobrium. That doesn't seem to be wrong, prima facie; the idea that my community should have any say in my sex life seems like a pretty obvious violation of liberal (and libertarian) thinking. "Behind closed doors" wasn't even part of the equation--the sex and nudity of that era was often quite public!
But to whatever extent society is going to punish sexual deviance--every consequence from ostracism through to actual legal penalties--should be attached to reasonably clear expectations. A marriage certificate says, presumably among other things, that "society approves of sex between these people." This was the substance of the Obergefell case--that society should formally approve homosexual relations as socially legitimate. One of the most interesting arguments I ever heard against gay marriage was from a young gay man whose reaction to this was that this was a total abandonment of the "queer" ethos; that the point was not to become accepted by society, but to break down its oppressive norms.
I do not know, but strongly suspect, that this is the mindset of people like Gaiman. "Look, I'm a brilliant, caring, utterly free individual who has transcended the boring, tradition-bound nonsense against which you youngsters rail. Behold my boundless freedom! Partake in it yourself by gnawing upon my engorged genitals, you free, sexy rebel, you." And of course, his critics can be easily dismissed as uptight religious whackjobs, or uptight feminists.
I also don't know what the answer is. My own inclination is toward freedom! I have always enjoyed Gaiman's writing, for whatever that's worth. I am inclined toward smaller government, however, which Gaiman generally was not. I don't want to make marriage a legal requirement for sex; I don't want us to prosecute fornication and adultery as a matter of law. But I'm increasingly concerned that we haven't really come up with a good alternative. The "consent model" seems like a failure and a burden. My instinct is that it would be best to have strong cultural norms in favor of traditional monogamous marriage, without legal requirements. But in the absence of those cultural norms, it seems like we as a culture are asking for the return of legal norms along those lines. This puts me in mind of Ben Franklin's (somewhat ironic) proclamation:
I agree with your final conclusion but that's why I don't see how small-l liberalism necessitates - even reading on the surface - the elimination of social opprobrium? In fact, that is clearly not what's happened and it's not what anyone actually wants to happen.
Your community has a say in your sex life because your community will bear the costs of enforcing violations of a notoriously hard to prove nature (when the violation is not the act of having sex itself). Tell-all articles about degenerate celebrities, for example, are written with the expectation that society as a whole will make some judgment and enforce consequences where the criminal justice system cannot.
So first let me say that I do not believe that small-l liberalism necessarily aims toward the elimination of social opprobium; most people do not chase the idea of liberty all the way to Ancapistan. But "not what anyone actually wants to happen" is probably asserting too much. I don't think it's a coincidence that the essay where the term "anarchocapitalism" was coined was first printed in Playboy in 1969; perhaps most notoriously, it was Playboy Press that published nude glamour photos of a certain 10-year-old celebrity in 1975. This was one year after the initial publication of Richard Farson's Birthrights, which contains the following passage (page 147-148 in the hardback I just pulled from my shelf)--
This is typical of bleeding-edge conversations surrounding sex and gender in the 1960s and 1970s. Nudity and sexual activity, being "natural," could not be bad; any shame or embarrassment or reticence felt in connection with one's body and its functions was a social construction in need of deconstruction. Meaningful harms were not the result of human activity, but of systemic oppression. Practical considerations like "bear[ing] the costs of enforcing violations of a notoriously hard to prove nature" scarcely entered into the conversation, except perhaps with hidebound conservatives whose opprobrium could be safely dismissed as mere patriarchy.
In hopes of maybe steelmanning American counterculture circa 1960, it's probably worth observing that there were (and arguably are) indeed many oppressive aspects to American culture! But people fighting for "freedom" do not typically concern themselves with the nuances of application, as we see even today with the "burn it to the ground" mentality of various anti-capitalist, "woke," or otherwise revolutionary types. These often find themselves hoist from their own petard, as it is not the elimination of social opprobrium they crave, but rather it is control of social opprobrium they crave, and when this becomes evident, many of their "anti-authoritarian" views turn out to just be different authoritarian views, and they lose their punk cred.
But there are purists out there, whether by naiveté or aspiration, who either believe or at least aspire to believe that what would really be best, is total independence from the all the pressures imposed by society. I think it is an unrealistic attitude. But I can grasp the appeal, the dream, of simply doing as I please, all the time. For the wealthy and powerful, it is more often a live option, and their revealed preferences routinely paint a startling portrait.
Sure. "Anyone" is too strong. These sorts of optimists exist.
I guess my take is that this sort of hope is like one of those strange particles that exist for rare and fleeting moments. Like those who think they're going to turn Seattle into an autonomous zone or Occupy was going to reshape all society: they get overtaken quickly by events and more pragmatic/ruthless people.
It may be the first step for the movement is to question norms. But college kids need some guidelines when there's a he-said, she-said. Workplaces need rules. Someone got abused (or "abused") by a famous man and needs to make sense of that. There needs to be consequences for legal yet unethical behavior.
Liberty from both government and society (as anything other than the privilege of the few) isn't a thing. Sooner, reality will force you to pick. In fact, destroying norms forces you to default to the government to enforce rules so you already picked.
There may have been people arguing that shame was all socially constructed but that certainly didn't drive the MeToo movement. Because none of that shit would have been helpful.
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Was there meant to be a footnote explaining "prima facie"?
No, that was me failing to open the italics properly, sorry.
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