… Tacitus, shortly after the Praetorian Edict, hitherto subject to an annual sunset clause, was enacted in perpetuum, thereby ending most substantive Roman legal innovation and, arguably, Roman societal and scientific innovation as well.
Hold that thought.
Law has limits I
Russell Blackford, toiling alone, has attempted to draw our attention away from the Melinda Tankard Reist v Jennifer Wilson defamation stoush. In this post, for example, he asks us to consider Jennifer Wilson’s substantive views, and (by necessary implication) Melinda Tankard Reist’s substantive views. Like Russell, I think the issues both raise are interesting in themselves. My reason for thinking so is simple: Melinda Tankard Reist seeks the imposition of new laws; Jennifer Wilson opposes the imposition of new laws. Part of the reason they disagree with each other so vehemently is a difference over law, and what should animate its enactment. Let me explain.
Law has two sorts of limits. The first concerns what one ought to do (with law). The second concerns what it is possible to do (with law). If it is true that Melinda Tankard Reist is a conservative Christian and seeks to impose new laws on that basis, then she is engaging in the first sort of (would be) lawmaking. This is known in the trade as a principled limit to law. Jennifer Wilson, by contrast, thinks that any proposed law should be subjected to empirical scrutiny, and that regardless of what one ought to do with law, what one is able to do with law is of greater importance. This is known in the trade as a means-end limit to law.
The core of the dispute between them turns on the means-end thinker suggesting that the principled thinker is using means-end research to achieve a principled aim. Hence the allegation of deception and duplicitousness when it comes to Melinda Tankard Reist’s religious beliefs. The (allegedly) principled thinker has responded by saying no, my principles are separable from the means-end arguments I make. My means-end arguments stand or fall on their own merits.
Now I find the tort of defamation endlessly fascinating, for the reasons Legal Eagle outlines in her splendid post The Streisand Effect. However, what I find even more interesting is a limits of law stoush, because, almost inevitably, limits of law stoushes reveal something fascinating about how we make and enforce our laws.
In law, if one is going to engage in principled reasoning, it is generally unwise to recruit means-end reasoning, and vice-versa. Thinkers who blur the two almost inevitably come unstuck. This is because the means-end thinker (typically an empiricist) is looking at outcomes, while the principled thinker is looking at what is right, which is of necessity logically prior, and focusses on intent. As should be obvious, they are approaching the problem from opposite ends of the snake. Perhaps I should add at this point that only one end of the snake actually bites.
A final bit of background: the best known argument that there is a principled limit to law is that given by John Stuart Mill, in his famous ‘harm principle‘. Many modern laws are enacted with the harm principle providing considerable ‘background radiation’. Unfortunately, the harm principle is so popular because it tends to produce good outcomes, and where it fails, the failures are controllable: the bad law can be excised with a sort of legislative surgical strike (although this doesn’t happen as often as it should, these days: as Tacitus complained, many bad and unworkable laws litter the books, sporadically enforced and expensive to maintain, until, eventually, they fall into desuetude). Other influential proposals for principled limits to the law do exist: for example, the suggestion that law must eschew certain kinds of otherwise valid moral reasons and that the law must be in some sense neutral.
Finding principled limits to the law, I maintain, is an elusive task. I could bore you all with why it is elusive, but since that was the subject of a 40,000 word Oxford M.Phil (Jurisprudence) thesis, I won’t go there. Instead, I want to consider some of the means-end arguments raised by both Melinda Tankard Reist and Jennifer Wilson. This is because the originating basis of this debate: to wit, the causal influence of media portrayals on public and private attitudes and behaviour — constitutes one of the thorniest problems in social science. It is a statistical and evidentiary nightmare. Building campaigns — especially for bans — when the evidence is not in is unwise: it’s just about the surest way to finish up with badly-drafted and ill-thought out legislation.
Right, that’s got all the bloody jurisprudence out of the way, on to the substance!
Jennifer Wilson (via Russell Blackford) raises the following issues:
I am also suspicious of her conflation of girls and women, when the two situations are entirely different and should be treated as such. Exploiting the sexuality of children (and children are sexual beings) is a whole other matter from the so-called epidemic of “sexualisation” and “pornification” of adults. I would like to see a journalist question Tankard Reist on her persistent conflation of the two. I believe it is deliberate.
We are sexual beings. Many of us, male and female, like to express our sexuality. It’s a big part of our identity. The ways in which we’ve chosen to do this have varied according to the style of the time. The ways some of us choose to do it in 2012 are, I would argue, no more or less scandalous than at other periods of human history. Yet a new sexual dysfunction called “sexualization” has entered the social discourse, driven initially in this country by Tankard Reist. She then gathered around her a motley crew of radical feminists and middle class moralists who tacitly ignore their considerable differences in the interests of the greater goal of fighting the twin evils they claim are destroying our society: sexualization and pornification.
[...]
Are Tankard Reist and her supporters in reality pathologizing all expressions of female sexuality? Genuine sexualization we may well get upset about, as a particular form of dehumanization, but are they using that word to obliterate the perfectly normal concept of female sexiness?
Does Tankard Reist believe that being sexy and feeling sexy is pathological behaviour outside of the marital bedchamber? And why does nobody ask her this question?
“Sexualization” and “pornification” are done to women, according to Reist. Women don’t choose to dress, work and play in ways that fit these pathological categories. They’ve been forced into them by men for male gratification. If you think you choose to wear high heels and a short skirt and learn pole dancing, you’re wrong. The patriarchy made you do it. If you think you like to show off your legs and breasts because it feels like sexy fun to do that, you didn’t make that choice, you know. You are actually so brainwashed that the whole concept of choice passed you by long ago. You are a victim.
If you want to look sexy because you’d like to have sex, if you earn your living as a sex worker or perform in porn, in short, if you express your sexuality in any way at all outside of marriage, you are dysfunctional, immoral or both.
Somebody needs to ask Tankard Reist just what she considers an acceptable public expression of female sexuality. I suspect the reality is, she doesn’t have one. For religious fundamentalists, there is no such thing. A woman must be modest and pure, but definitely not sexy and enjoying it.
What kind of a lesson is this to teach our girls about their sexuality?
Having thus far failed to take control of the sexy and eradicate its expression through the invocation of morality, defining it as a pathological disorder is the next step in the reactionary battle for control of female sexuality.
I’m hoping that the distinction between principled limits (‘a woman must be modest and pure’) and means-end limits (‘defining it as a pathological disorder’) on the (legal) expression or depiction of female sexuality is clear. Wilson’s implication is that if the first (moral) claim fails on the merits, then a second, empirical claim (still buttressing the failed moral claim) is being smuggled into the argument.
Law has limits II
That is obvious. Legal officials at various times and in various places have objectives and they need to find the best way of achieving them. Some might seek to end casual street violence, so impose stiff legal penalties on anyone caught engaging in such conduct. Some might seek to end demonstrable harms caused by alcohol or drugs through prohibiting their sale and consumption. Others might seek to meet housing needs by imposing minimum standards for accommodation on those who rent out their properties. Though they seek the best means of reaching their goals, they might fail and the failure could be dramatic.
In all the examples mentioned above the aims sought may not materialize. The stiff legal penalties imposed by those seeking to curtail street violence may lead only to an increase in violence as perpetrators reason they may as well be hung for a sheep as a lamb. The prohibition of alcohol consumption may merely drive consumption underground, failing in its purpose and succeeding only in adding to the stock of societal harms as further criminality incident on the prohibition grows. Property owners, rather than forking out for legally mandated improvements to their rental property, may simply take their properties off the market, resulting in fewer affordable properties available for rental and fewer needs met. In each case the law has overreached itself. Having observed the results of their efforts, the legal officials may conclude that it would have been better to have used other means or maybe even to have done nothing, to have tolerated the former level of harm, since their means of putting it to an end did not solve the problem aimed at, but exacerbated it. In pursuing the best result as they see it, they have achieved only the third-best and now the problem might be the embarrassing one of getting back to second-best.
These are familiar stories in skeletal form and illustrate the commonplace that the methods the law might use can simply misfire. There are limits to what the law can achieve because some of its tools are blunt. Some tools do not work, others are counter-productive; some exacerbate the problem they were supposed to solve. Knowing what works and what does not and what will be counterproductive is important knowledge indeed.
There ought to be a law against it!
Because principled limits to law are elusive, then means-end limits must be found. And when they are found, they had better be bloody good means-end limits, because the price of failure is high: the section above references Prohibition, some spectacular examples of failed policing, and the effect of various rent-restriction acts in both Britain and the US. Of the three means-end failures, only one has been largely abandoned: Prohibition, although no doubt Ron Paul and other opponents of the War on Drugs would argue (probably rightly) otherwise. The others are still around, cluttering up the books, gumming up the legal system, costing us a motza.
When laws are enacted on the basis of empirical arguments (what is sometimes called ‘evidence-based policy’), great care should go into researching the issue in question. This latter is particularly the case when the proposed law conflicts with another important legal doctrine. As should be reasonably obvious, Melinda Tankard Reist’s claims about objectifying advertising, child sexualisation and pornography (I am being careful to take Jennifer Wilson’s counsel and keep the categories separate) conflict with freedom of expression, a cherished value in Anglophone (common law) democracies, and self-expression, a cherished value in civilian (Roman law) democracies. Traditionally, putting freedom of expression or the right to self-expression to one side in favour of another claim, however strong, is subjected to ‘anxious scrutiny‘ by the courts. And with good reason.
A selection of claims
Melinda Tankard Reist makes various claims and engages in various campaigns. Here is a selection (culled both from the oganisation Collective Shout and her personal website):
- A campaign against Typo, a office supplies company, for the sale of porn themed novelty mugs and stationary.
- A campaign against Kmart (the Australian version of Asda) for selling ‘sexualised’ knickers to girls. The press release boasts:
“In one of the fastest responses to consumer complaints that we’ve seen, Kmart has withdrawn a range of underwear with sexualised slogans and issued an apology assuring customers they will not repeat the same mistake.The hashtag campaign #kmartsexploitation began when these photographs were shared on twitter. The Girls Xpress branded underwear featured slogans such as ‘Call me’ ‘I Love Rich Boys’ and ‘I love boys in uniform.’”
There are many others; I recommend further exploration. I have tried to showcase a reasonable variety, if only to illustrate that she does conflate Wilson’s categories as part of her broader campaign ‘against the objectification of women and sexualisation of girls in media, advertising and popular culture’ (Collective Shout’s strapline). That said, it is difficult to see how the ban on A Serbian Film contributes to her wider goals. There is a difference between a piece of arthouse cinema and a popular line in branded girls’ underwear.
The reason maintaining the distinction between Wilson’s categories is important is because the evidence supporting/undermining means-end legal limits for each is different. The research Collective Shout has itself compiled discloses this clearly, although I did my own literature review (Goddess bless LexisNexis and Westlaw and all who sail in them) to confirm my initial impression. Reist’s strongest claims for actual harm concern, unsurprisingly, children, particularly when it comes to child beauty pageants. These, it seems (based on the available research) introduce children to competition too early for them to grasp its meaning, with deleterious effects. The participants are typically younger than the youngest ages permitted in competitive sport, even in a controlled environment like, say, Little Athletics. Other claims are far more tenuous, and may even be contra-indicated. The claim that porn has a deleterious effect on its users and society more generally, for example, is particularly weak.
Why is showing harm so important? Because when one is making means-ends arguments, one has to do four things:
1. Show that the activity is harmful.
2. Show that the enactment of laws against it would reduce the harm.
3. Show that the enactment of laws against the activity would not damage other, valued activities.
4. Accept that even if the first three requirements are satisfied, impossibility/difficulty of enforcement may still mean ‘do nothing’ or ‘legalise, regulate and tax’.
The second requirement, it should be noted, is onerous. ‘About the same’ is not good enough. The reduction in harm needs to be material and quantifiable. If the law exacerbates the harm, or does nothing while costing a fortune, or achieves a little bit while damaging another, valued activity, then it has failed. See Law has Limits II, above.
When campaigners think there oughtta be a law, how do they go about it?
Very often, by not thinking very hard. This sounds cruel to Melinda Tankard Reist, but is not meant to be, for the thoughtlessness afflicts activists across the political spectrum. As someone with wonkish interests and experience, the process of campaigning seems to go like this:
1. An intuitive sense that a given activity is bad, for a variety of inchoate and unclear reasons. It is at this point — although much philosophy depends on intuitions — that the stupidity usually kicks in, becoming like a mistake made in the first two lines of a complex algebra equation: magnified, typically, at every step. When the hypothesis is poorly formed, then observations enlisted in its support can be seriously awry.
The intuition problem stems in part from a failure to appreciate that other people may not react to the activity in question in the same way, with the campaigner having great difficulty imagining him or herself into someone else’s head. When it comes to the objectification of adult women, for example (one of Wilson’s ‘categories’), we may be dealing with normal statistical differences both between men and women, and also statistical variation within the set, ‘women’. Many women dislike male attention, being ogled, say, or chatted up. They dislike porn and find it degrading of women. By contrast, many women like and want male attention. They have no problem with porn. There are also intermediate positions between the two.
The campaigner’s response, of course, is the one Wilson has already flagged: to argue that women who like porn or pole-dancing or whatever are victims of a form of false consciousness: that is, they are unable to see things, especially exploitation, oppression, and social relations, as they really are. It should be very obvious that this is an enormous claim, for embedded within it is one express argument: the pole-dancing and porn-loving woman’s mind is (a) unable to produce a sophisticated awareness of how it is developed and shaped by circumstances; and one implied argument (b) that the campaigner knows better than the pole-dancing, porn loving woman, and should decide for her. That’s where the law comes in, of course.
2. Realising that ‘I don’t like being objectified, so there ought to be a law against it’ won’t cut the mustard with policymakers, advertisers, politicians, business and legal drafters, the campaigner goes looking for a link between objectification and other harms.
This is the stage where the great bulk of the research cited by participants on all sides of this debate is at right now. The evidence points in fifty different directions. Much of it is very bad. Some of it has clearly been written by people who need desperately to read a statistics textbook. Tankard Reist’s book on grief after abortion, for example, is based on only 18 case studies. N=18, ladies and gentlemen or, the plural of ‘anecdote’ is not ‘data’. Others have no causality tests, or lack controls, or no regression analysis.
You are regressing…
Regression works by artificially holding constant every variable except the two the researcher wants to focus on, and then showing how those two co-vary.
Imagine you have 10,000 girls, 5,000 of whom have participated in child beauty pageants and 5,000 who haven’t. You want to see if there’s any meaningful difference between the two groups — in say, school test scores, or ability to delay gratification (the famous ‘marshmellow test‘), and whether any difference (there may not be one) is attributable to participation in child beauty pageants for the first 5,000. Regression analysis converts each of those 10,000 children into a circuit board with an identical number of switches. Each switch represents a single category of the child’s data: her year one maths score, her year-three reading score, her mother’s education level, her father’s income, whether she comes from an intact family, the relevant affluence of her suburb, and so on. The statistician lines up all the children who share many characteristics–all the circuit boards that have their switches flipped in the same direction–and then pinpoints the single characteristic they don’t share. This is how the effect of that switch and, eventually, of every switch, becomes clear.
Be careful with that Leviathan, Citizens!
This, as you may appreciate, is a long, slow process. Many activists don’t have the patience. So they revert to item 1, and spend a great deal of time arguing that their choices are better than other people’s while getting entangled in complex debates over freedom of expression. If they catch the ear of lawmakers, of course, they may even get their much desired law.
And if the law is bad enough, we, the people, all suffer — likely from both crimes and laws.
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