In response to three papers about sex and disability published in this journal, I offer a critique of existing arguments and a suggestion about how the debate should be reframed going forward. Jacob M. Appel argues that disabled individuals have a right to sex and should receive a special exemption to the general prohibition of prostitution. Ezio Di Nucci and Frej Klem Thomsen separately argue contra Appel that an appeal to sex rights cannot justify such an exemption. I argue that (...) Appel’s argument fails, but not for the reasons Di Nucci and Thomsen propose, as they have missed the most pressing objection to Appel’s argument: Appel falsely presumes that we never have good reasons to restrict someone’s sexual liberty rights. More importantly, there is a major flaw in the way that all three authors frame their positive accounts. They focus on disability as a proxy for sexual exclusion, when these categories should be pulled apart: some are sexually excluded who are not disabled, while some who are disabled are not sexually excluded. I conclude that it would be less socially harmful and more productive to focus directly on sexual exclusion per se rather than on disability as a proxy for sexual exclusion. (shrink)

H. L. A. Hart, in his classic book Law, Liberty, and Morality, is unsuccessful in arguing that James Fitzjames Stephen’s observations about the role of vice in criminal sentencing have no relevance to a more general defense of legal moralism. He does, however, have a very important insight about the special significance of sexual liberty.

In his treatment of the issues raised by the movements of women for equal rights a century ago, Michels anticipated controversies and conflicts about which people care deeply today. He took a clear position in support of the desirability of equality between the sexes. In consequence, it remains relevant to current debates within feminism over equality and difference and the corresponding challenge to, and feminist critique of, social science arising from the (re) emergence of "difference" feminism.Sexual Ethics constitutes both (...) an analysis of the "woman problem" and a document describing the wars between the sexes during this period and an important and overlooked piece of history of the classic sociological tradition. Michels observed that the national and economic conflicts in modern Europe were vast in scale and revealed sharply sensed injustices, and also that sex antagonisms are becoming more acute. He presented an argument, consistent with his theoretical position, about the seriousness of women's rights. Michels' discussions of sexuality, sexual morality, and the relations of the sexes had as its stimulus "the new sexual ethic" advocated by feminists. He pointed out that true equality required equality of rights to sexual liberty for women or chastity prior to marriage for men.Michels supported premarital chastity for men as an ideal, but he doubted that very many would practice it. Michels was virtually alone in the sociological tradition in seeking to illuminate the "struggle for love" between men and women by reference to the "erotic coquetry" in the sexual behavior of "lower animals." Despite his stand for equality of men and women in sexual matters, a recurrent theme in Sexual Ethics is that men are sexually more aggressive than women, at least in part due to social structures and cultural traditions. Michels advocated family planning (but opposed abortion) in the interests of marital and family happiness and economic well-being, especially for the poor.In his new introduction, Terry R. Kandal discusses Robert Michels' life. He explores, among other topics, Michels' treatment of the woman question and the reactions of Michels' contemporaries to the same question. He also discusses the feminist critique of social science, and the place of Michels in and the gender questions of our times. The book will be of particular interest to those interested in the history of relations between men and women as well as those interested in questions of biological determinism. (shrink)

Industry-funded religious liberty legal groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously-affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally.

Hart argues persuasively that majority disapproval cannot justify the government in prohibiting a form of sexual conduct, but he does not address the possibility that the intrinsic badness of a sex act might justify the government in prohibiting it. This article explains within a contractualist framework why the intrinsic badness of a sex act cannot justify the restriction of any important sexual freedom.

This incisive book deals with the use of the criminal law to enforce morality, in particular sexual morality, a subject of particular interest and importance since the publication of the Wolfenden Report in 1957. Professor Hart first considers John Stuart Mill's famous declaration: "The only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others." During the last hundred years this doctrine has twice been sharply challenged by two (...) great lawyers: Sir James Fitzjames Stephen, the great Victorian judge and historian of the common law, and Lord Devlin, who both argue that the use of the criminal law to enforce morality is justified. The author examines their arguments in some detail, and sets out to demonstrate that they fail to recognize distinction of vital importance for legal and political theory, and that they espouse a conception of the function of legal punishment that few would now share. (shrink)

This chapter briefly reviews the evolution in decisions of the U.S. Supreme Court of what was originally identified as a privacy right but is now correctly identified as a liberty right against legal paternalism. The chapter uses the main principle to trace the contours of what this right should include: right to religious freedom; a right to sexual freedom; a right to reproductive freedom; a right to refuse medical treatment, including a right to refuse extraordinary care and to (...) be removed from life support; a right to marry that includes same sex marriage; a right to suicide and assisted suicide in certain end-of-life situations. The chapter also explains why there should be human rights to spatial privacy and informational privacy. (shrink)

The conventional wisdom that influences university policy on what is considered valid sexual consent has undergone radical change over the past twenty years. Valid consent being the criteria that makes subsequent sexual behavior morally justified because the consent is morally transformative in the way that matters. Affirmative consent policies are now being used increasingly at universities across the country, as well as forming the basis for legislation in some U.S. states. University policies that define affirmative consent are varied, (...) but policies generally require the consent to be voluntary, conscious, unambiguous, and ongoing. The consent can be communicated verbally or behaviorally as long as it is clear and continues throughout the sexual encounter. I will argue against both the unambiguous and ongoing requirements of sexual consent. I contend that we should reject the affirmative model of sexual consent because of the problems with these requirements and I then offer some reasons in favor of returning to a lack of dissent model of sexual consent. (shrink)

Much of modern ethics is built around the idea that we should respect one another’s autonomy. Here, “we” are typically imagined to be adult human beings of sound mind, where the soundness of our mind is measured against what we take to be the typical mental capacities of a neurodevelopmentally “normal” person—perhaps in their mid-thirties or forties. When deciding about what constitutes ethical sex, for example, our dominant models hold that ethical sex is whatever is consented to, while a lack (...) of consent makes sex wrong.1 Consent, in turn, is analysed in terms of autonomous decision-making: a “yes” or “no” that reflects the free and informed will of our idealised, sound-minded adult. Whether such models provide adequate normative guidance for ethical, much less good, sex between neurotypical human adults is an open question.2 3 When it comes to the ethics of sexual activity between humans and non-humans—robots, say—or between humans who don’t fit the rational stereotype, we hardly know where to begin.4–7 It is therefore heartening to see a number of papers in this issue tackling the difficult question how to respectfully facilitate or respond to the needs, desires, and decisions of people with different kinds or degrees of autonomy.8 For example, Sumytra Menon and colleagues9 explicitly discuss the notion of “borderline capacity” and argue, in the medical domain, for shared and supportive decision-making practices to “foster the autonomy of patients with compromised mental capacity while being mindful of the need to safeguard their well-being.” Touching on a similar theme, Zahra Ladan 10 asks how we should conceive of liberty in the case of persons with certain inborn physical or mental limitations. Might it sometimes be necessary to …. (shrink)

Objective Our study sought to (1) describe the practices and preferences of Colombian adolescents in accessing sexual and reproductive health services: accompanied versus alone; (2) compare actual practices with stated preferences; and (3) determine age and gender differences regarding the practice and these stated preferences. -/- Methods 812 participants aged 11–24 years old answered a survey in two Profamilia clinics in the cities of Medellin and Cali in Colombia. A cross-sectional analysis was performed to compare participants’ answers based on (...) the variables of gender and age. -/- Results A quarter of participants visited the clinic alone (25.4%). Females were more likely to go alone in comparison to males (26.3% vs 14.1%; p = 0.031), and older participants went alone more often than younger participants (p < 0.001). Most participants – 72.7% (95 %CI: 69.3–75.9) – expressed a preference in being accompanied to the clinic, and more than 90% had their preferences met. The preferences of older participants were, however, less likely to be met than those of younger participants (p < 0.001), notably, because they predominantly wanted to be accompanied. -/- Conclusion Contemporary public health and bioethics literature advocates in favor of developing health services that better meet the preferences of adolescents. The present research highlights an apparent blind spot related to the role that others (e.g., parents, friends, partners) can or should play in accompanying adolescent patients when they access sexual and reproductive health services. Respecting adolescents’ preferences, and hence their autonomy, is not simply a matter of ensuring freedom from constraints (e.g., their right and ability to go alone). Rather, it should also consider the liberty to choose whether to be accompanied when accessing SHRS and by whom. (shrink)

This book defends the fundamental place of the marital family in modern liberal societies. While applauding modern sexual freedoms, John Witte, Jr also defends the traditional Western teaching that the marital family is an essential cradle of conscience, chrysalis of care, and cornerstone of ordered liberty. He thus urges churches, states, and other social institutions to protect and promote the marital family. He encourages reticent churches to embrace the rights of women and children, as Christians have long taught, (...) and encourages modern states to promote responsible sexual freedom and family relations, as liberals have long said. He counsels modern churches and states to share in family law governance, and to resist recent efforts to privatize, abolish, or radically expand the marital family sphere. Witte also invites fellow citizens to end their bitter battles over same-sex marriage and tend to the vast family field that urgently needs concerted attention and action. (shrink)

The feminist critique of liberalism runs parallel to the Marxist critique of liberal equality and rights. In each case the objection is that a set of liberties and rights formally guaranteed for all does nothing to prevent unfair inequalities in substantive life prospects from burgeoning within this formally equal framework. Workers and capitalists are formally free to trade with each other on any mutually agreeable terms but the enormous disparities in ownership of property bring it about that workers are forced (...) to sell their labor power for subsistence wages. Men and women are formally free to contract with each other and deal with each other on any mutually agreeable terms but social norms, the threat advantage that accrues to men in virtue of their being on the average physically larger and stronger, the social inheritance by men of greater property and political power initially gained in brutally misogynist regimes, and so on conspire to leave women worse off than men on the average in life prospects. (shrink)

Fertility clinicians participate in non-sexual reproductive projects by providing assisted reproductive technology (ART) to those hoping to reproduce, in support of their reproductive goals. In most countries where ART is available, the state regulates ART as a form of medical treatment. The predominant position in the reproductive rights literature frames the clinician’s role as medical technician, and the state as a third party with limited rights to interfere. These roles broadly align with established functions of clinician and state in (...) Western liberal democracies, where doctors have duties to provide safe, beneficial and legal healthcare to all who seek it. Recognised state responsibilities include safeguarding equitable access to medical services and protecting and promoting reproductive liberty.I argue against this normative moral framing of clinician and state involvement in non-sexual reproduction, suggesting that clinician and state join the non-sexual reproductive project at the point of triggering conception. Begetting a child is more than just the provision and regulation of healthcare; it generates rights and confers responsibilities on all who join this morally significant project. All who collaborate have the right to join or refuse to join the project. I suggest this is intuitively understood in the sexual realm, but not in the non-sexual realm. My key substantive claim is that non-sexual reproduction is a pluralist pursuit that morally implicates more than the genetic and gestational contributors. I find that while the moral basis of a clinician or the state’s right to refuse to join the ART project is the same as for those providing gestational or genetic input, the reasons that morally underpin their refusal differs. (shrink)

ABSTRACTThis paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual behavior of one's choice or to have access to pornography.

This article argues that in order to understand the form of modern political freedom envisioned by Rousseau, we have to understand his theory of taste as refined Epicureanism. Rousseau saw the division of labour and corrupt taste as the greatest threats to modern freedom. He identified their cause in the spread of vulgar Epicureanism – the frenzied pursuit of money, vanity and sexual gratification. In its place, he advocated what he called ‘the Epicureanism of reason’, or refined Epicureanism. Materially (...) grounded on an equitable proportion of needs and faculties, this was a hedonist theory of self-command designed to cultivate the temperate enjoyment of sensual pleasure. I argue that Rousseau hoped that a shift from vulgar to refined Epicureanism would secure political freedom in modernity by grounding the politics of the general will in an economics of balanced growth and a reinvigorated appreciation of natural beauty. This perspective provides a new way of both clarifying the role of economic justice and aesthetic judgment in Rousseau's republican state theory, and of assessing the consistency of his moral and political thought. (shrink)

A growing focus on pleasure in human rights discourse has been used to address patterns of sexual exclusion, often when addressing the problems of people with disabilities (PWD). As convincingly argued by Liberman, however, not all PWD suffer from sexual exclusion, and not all who suffer from sexual exclusion are PWD. Danaher and Liberman have thus argued in various ways for a broader range of measures, addressing sexual exclusion. This article builds on previous research and offers (...) a conceptual framework for addressing sexual pleasure and exclusion in terms of human rights. It argues that human rights aim to safeguard autonomy, which is interpreted as multidimensional. It, thus, divides autonomy into the four dimensions of liberty (freedom from threat and coercion), opportunity (options to choose between), capacity (what an agent is capable of doing) and authenticity (the extent to which choices are genuine). Furthermore, it distinguishes between distinct egalitarian strategies, which offer different problems and possibilities, and may be combined. Thus, there is direct egalitarian distribution, indirect egalitarian distribution, baseline or threshold strategies and general promotion strategies. By way of conclusion, the importance of sexual authenticity as the ultimate aim of sexual rights is emphasised. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“More or Less Raped”:Foucault, Causality, and Feminist Critiques of Sexual ViolenceKelly H. BallI say “freedom of sexual choice” and not “freedom of sexual acts” because there are sexual acts like rape which should not be permitted.… I don’t think we should have as our objective some sort of absolute freedom or total liberty of sexual action.—Michel Foucault, Ethics, Subjectivity, and TruthCausality in the (...) subject, the unconscious of the subject, the truth of the subject in the other who knows, the knowledge he holds unbeknown to him, all this found an opportunity to deploy itself in the discourse of sex.—Michel Foucault, The History of Sexuality, Volume I: An IntroductionMost Feminist Readers Of Foucault are familiar with the case of the “simple farmhand,” Charles Jouy, whom Foucault briefly mentions in The History of Sexuality, Volume I (henceforth Sexuality One). The case of Charles Jouy and [End Page 52 ] Sophie Adam (the relatively unknown name of the “little girl” from whom Jouy “obtained a few caresses”) is instructive for Foucault, as it illustrates both the epistemic shifts and changing technologies of power—specifically the emergence of sexuality—during the late nineteenth century (Foucault 1990, 31). By the time Foucault published Sexuality One in 1976 (translated and published in English in 1978), he had already spent considerable time analyzing the Jouy-Adam case. In his 1974-75 lectures at the College de France, Les Anormaux, Foucault delivered an extended analysis of the case resulting from archival research he undertook at the Bibliotheque Nationale de France. The infamously brief 1978 appearance of the case in Sexuality One, then, is only a distilled version of the case that references Foucault’s earlier argument in Les Anormaux about the expansion of sexuality as a productive technology of power-knowledge-pleasure. 1Much of the feminist response to Foucault’s use of the Jouy-Adam case in Sexuality One is bound up with obstacles of time and translation. While Sexuality One was published in English in 1978, Foucault’s 1974–75 lectures, Les Anormaux, were not published in French until 1999, and the English translation, Abnormal, only appeared in 2003. Clearly, this translation and publishing timeline complicates the reception of Foucault’s thinking about the production and regulation of sexuality for many American readers. The relatively late appearance of Abnormal has limited Anglophone feminist theorists’ ability to engage Foucault’s theories about sexuality and violence more extensively.With few exceptions, feminists have been overwhelmingly critical of what they view as Foucault’s reductive presentation of the Jouy-Adam case and his blindness to sexual violence in Sexuality One. 2 Linda Martín Alcoff’s 1996 essay “Dangerous Pleasures: The Politics of Pedophilia” is representative of this trend. The feminist concerns Alcoff raises regarding Foucault and the Jouy-Adam case both precede her essay and persist in more recent feminist analyses. Still, the essay remains symptomatic of how feminist theorists have responded generally to Foucault’s comments on sexual violence and specifically to his comments regarding the desexualization of rape. 3 Alcoff buttresses her critique of Foucault’s presentation of the Jouy-Adam case in Sexuality One by referring to his comments on children, sexual violence, and pedophilia in a transcript of a collective interview with Jean Danet and Guy Hocquenghem, “Sexual Morality and the Law” (Alcoff 1996, 102-106). 4 Her critique in “Dangerous Pleasures” centers on preserving a feminist capacity to determine what counts as violence and make judgments accordingly. The fact that this discussion has endured for more than thirty years (beginning with Monique Plaza’s 1981 response to Sexuality One) speaks to the persistence of sexual violence against women and children as a feminist concern. 5 That concern is somewhat at odds with Foucault’s conception of sexuality as a productive mode of modern biopower. [End Page 53]Reading athwart Alcoff and the feminist tradition she represents, I argue here that the practice of making judgments about sexual violence relies upon a concept of causality that is an extension of the modern framework of power-knowledge-pleasure. I do so by focusing on Foucault’s more detailed account of the Jouy-Adam case In Abnormal. Indeed, reading... (shrink)

This book proposes a new, rationally-justified, evidence-based theory concerning values. It discusses practical applications of these universally-applicable values, especially to morality, society, education and upbringing. In doing so, it discusses sexism, sexuality, racism, freedom, politics, law, animal rights, environmental ethics, health-care, war, economics, psychology, science, literature, religion, and much more.

Should "hate speech" be made a criminal offense, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When the American flag is burned in protest, what rights of free speech are involved? In a lucid and balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace (...) harassment, acclaimed First Amendment scholar Kent Greenawalt now addresses a broad general audience of readers interested in the most current free speech issues. (shrink)

Should "hate speech" be made a criminal offense, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When the American flag is burned in protest, what rights of free speech are involved? In a lucid and balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace (...) harassment, acclaimed First Amendment scholar Kent Greenawalt now addresses a broad general audience of readers interested in the most current free speech issues. (shrink)

In this paper I will use sex by deception as a case study for highlighting some of the most tricky concepts around sexuality and moral psychology, including rape, consensual sex, sexual rights, sexual autonomy, sexual individuality, and disrespectful sex. I begin with a discussion of morally wrong sex as rooted in the breach of five sexual liberty rights that are derived from our fundamental human liberty rights: sexual self-possession, sexual autonomy, sexual (...) individuality, sexual dignity and sexual privacy. I then argue (against the standard interpretation) that experimental findings in moral psychology show that the principle of respect for persons—a principle that grounds our human liberty rights—drives our intuitive moral judgments. In light of this discussion, I examine a puzzle about sex by deception—a puzzle which at first may seem to compel us to define 'rape' strictly in terms of force rather than sexual autonomy. I proceed by presenting an argument against the view that, as a rule, sex by deception undermines consent—a position held by prominent thinkers such as Philippe Patry (2001), Onora O’Neill (2003), Rubenfeld (2012), Tom Dougherty (2013a, 2013b), Joyce M. Short (2013), and Danielle Bromwich and Joseph Millum (2013, 2018). As we will see, sex following deception to increase your chances does not always constitute rape. Lying about your age, education, job, family background, marital status, or interest in a relationship, for example, does not make your sex partner incapable of consenting, which is to say that sex by deception need not be rape. I even go so far as to say that sex with another person that is facilitated by withholding information about having a venereal disease shouldn't be classified as rape. Although sex by deception doesn't compromise consent, it nonetheless violates the principle of respect for persons, not by vitiating sexual autonomy and compromising consent, but by failing to respect other sexual rights, such as our rights to sexual dignity, individuality, and privacy. (shrink)

This article argues that liberal arguments for human rights minimalism, such as those of John Rawls and Michael Ignatieff, contain fundamental inconsistencies in their treatment of core rights to life and liberty. Insofar as their versions of minimalism foreground rights to physical security and basic freedom of movement, they cannot coherently exclude certain social and economic protections and liberties that directly support or are even partly constitutive of these rights. Nor do they have good grounds for putting the social (...) and private realms wholly beyond the purview of international law. “New” human rights that represent an expansion of civil rights in particular beyond the classic conception to encompass, for example, the right to freedom from sexual and gender-based violence, illustrate especially well the extent to which civil, social, and economic rights violations, and their remedies, are deeply interwoven. These emergent rights also directly challenge the dichotomy between public/political and private/social realms, and the corollary assumption that human rights violations occur mainly or exclusively in the former sphere. While the concerns that motivate arguments for human rights minimalism — considerations of pluralism and prudence — are legitimate, proponents would do best to reconsider the multiple roles that human rights in fact play, in spite of their essentially contested status. (shrink)

This paper analyzes the underlying tendencies and attitudes toward reproductive medicine borrowing the Nietzschean concepts of nihilism: “death of God” with secularization; “will to power” with reproductive liberty and technological power; and the race of “supermen” with transhumanism. Medical science has advanced in leaps and bounds. In some way, technical innovations have given us unprecedented power to manipulate the way we reproduce. The indiscriminant use of medical technology is backed by a warped notion of human freedom. With secularization in (...) the West, freedom has taken on greater significance in society, but with a heavy emphasis on individual choices and rights. As technology joins forces with sexual liberty, it is not difficult to understand why the public accepts the latest novelty from the reproductive industry. As a result, many find Catholic teaching behind the times and incomprehensible, if not downright anti-scientific. In fact, this coupling of reproductive liberty (will) with reproductive technology (power) echoes the famous dictum “will to power” Nietzsche predicted would characterize post-modern societies. When liberty becomes absolute and technology unchecked, transhumanism is the logical outcome. As a response to these nihilistic tendencies, the paper will end with a critique drawing from theological insights. (shrink)

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom: freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more than 170 cases, (...) albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This article calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims. (shrink)

Aggressive techniques within casual sex encounters, such as taking sexual liberties without permission or ignoring rejection, can, perhaps unintentionally, complicate consent. Passive recipients may acquiesce out of fear, which aggressors may not realize. Some philosophers argue that social norms are sufficiently well known to make this misunderstanding unlikely. However, the chance of aggression leading to non-consensual sex, even if not great, is high enough that aggressors should work diligently to avoid this potentially grave result. I consider how this problem (...) plays out in the common mating ritual of hooking up. I argue that aggressive hook ups can only be permissible if they are modeled on BDSM encounters: the participants must obtain prior consent and prepare safe words for voiding that consent during the hook up. While this solution removes the spontaneity of aggressive sex, I argue that spontaneously aggressive hook ups with strangers cannot be permissible. (shrink)

How sexuality should be regulated in a liberal political community is an important, controversial theoretical and empirical question—as shown by the recent criminalization of possession of some adult pornography in the United Kingdom. Supporters of criminalization argue that Mill, often considered a staunch opponent of censorship, would support prohibition due to his feminist commitments. I argue that this account underestimates the strengths of the Millian account of private conduct and free expression, and the consistency of Millian anticensorship with feminist values. (...) A Millian contextual defense of liberty, however, suggests several other policy approaches to addressing the harms of pornography. (shrink)

Criminalisation of prostitution, and minority rights for disabled persons, are important contemporary political issues. The article examines their intersection by analysing the conditions and arguments for making a legal exception for disabled persons to a general prohibition against purchasing sexual services. It explores the badness of prostitution, focusing on and discussing the argument that prostitution harms prostitutes, considers forms of regulation and the arguments for and against with emphasis on a liberty-based objection to prohibition, and finally presents and (...) analyses three arguments for a legal exception, based on sexual rights, beneficence, and luck egalitarianism, respectively. It concludes that although the general case for and against criminalisation is complicated there is a good case for a legal exception. (shrink)

ABSTRACT This article examines Olympe de Gouges’ demands for the rights of woman in her famous but still understudied work Les droits de la femme. A La Reine [1791]. Particular emphasis is put on analysing how she combines her demand for equality with her conception of sexual difference. The article consists of three parts. The first part gives a brief overview of the demands for the equality of the sexes as they were presented in seventeenth-century France and critically reacted (...) upon in eighteenth-century France, not least by Jean-Jacques Rousseau in his defence of sexual difference. The second and third parts focus on Gouges’ argumentation. First, by analysing how she argues for women’s active citizenship by criticising the exclusion of women from the public sphere, but without questioning sexual difference as such; and second, by discussing how she redefines the famous slogan of the French Revolution; liberty, equality, fraternity. The conclusion argues that rather than being caught in a paradox of equality and difference, as has been claimed by Joan W. Scott, Gouges did successfully combine the two concepts, even if her interpretation of their relation was excluded from the canon of political theory. (shrink)

Toward a Postmodern Ethic of Radical Freedom is one of the first, if not the first, to bring Cornel West and Michel Foucault together in a meaningful dialogue to formulate "a postmodern ethic of radical freedom." This dialogue begins with the practical posture of West, more specifically his notions of truth and reality and work, then goes back to his more theoretical work to explore the same notions. As a project in constructive ethics, this book examines Cornel West's epistemology (notion (...) of truth) and metaphysics (notions of reality) as foundational components for a postmodern ethic of radical freedom. These foundational components are then brought into a discursive conversation with aspects of Michel Foucault's archaeology and genealogy, with a method called reconstruction. This reconstruction results in two important trajectories, radical ontology and radical epistemology, which become the pillars for a postmodern ethic of radical freedom. The last chapter of the book weaves together all components with the womanist work of Monica Coleman and Patricia Hill Collins as examples of this ethic of radical freedom. Practically speaking, this postmodern ethic of radical freedom serves as a platform to ensure transcendence so that all people, regardless of race, gender, or sexuality, can enjoy a flourishing and fulfilled life. (shrink)

In his extensive private manuscripts, Jeremy Bentham used same-sex male intimacy as a philosophical test-case for the full political and social enfranchisement of women, colonized and enslaved persons, and sexual nonconformists. Bentham argued that oppression in law, philosophy, religion, and literature were all based on aesthetic hierarchies that refused to acknowledge differences of taste in sensory pleasure, including sexual pleasure. In Uncommon Sense, Carrie Shanafelt reads Bentham's sexual nonconformity papers as an argument for the toleration of aesthetic (...) difference as the foundation for egalitarian liberty. Shanafelt challenges the common image of Bentham as a dehumanizing calculator or an eccentric projector, instead showing Bentham at his most intimate, outraged by injustice and desperate for the end of discriminatory violence. (shrink)

Hate speech employs discriminatory epithets to insult and stigmatize others on the basis of their race, gender, sexual orientation, or other forms of group membership. The regulation of hate speech is deservedly controversial, in part because debates over hate speech seem to have teased apart libertarian and egalitarian strands within the liberal tradition. In the civil rights movements of the 1960s, libertarian concerns with freedom of movement and association and equal opportunity pointed in the same direction as egalitarian concerns (...) with eradicating racial discrimination and the social and economic inequalities that this discrimination maintained. But debates over hate speech regulation seem to force one to give priority to equality or to liberty. On the one hand, egalitarian concerns may seem to require restricting freedom of expression. Hate speech is an expression of discriminatory attitudes that have a long, ugly, and sometimes violent history. As such, hate speech is deeply offensive to its victims and socially divisive. Though one might well be reluctant to restrict speech, it might seem that the correct response to hate speech, as with other forms of discrimination, is regulation. On the other hand, libertarian concerns may seem to constrain the pursuit of equality. Though one may abhor hate speech and its effects, the cure might seem at least as bad as the disease. Freedoms of expression are among our most fundamental liberties. Offensive ideas are part of the price one must pay to protect these constitutional rights. (shrink)

This ground-breaking book surveys the history of women's political thought in Europe from the late medieval period to the early modern era. The authors examine women's ideas about topics such as the basis of political authority, the best form of political organisation, justifications of obedience and resistance, and concepts of liberty, toleration, sociability, equality, and self-preservation. Women's ideas concerning relations between the sexes are discussed in tandem with their broader political outlooks; and the authors demonstrate that the development of (...) a distinctively sexual politics is reflected in women's critiques of marriage, the double standard, and women's exclusion from government. Women writers are also shown to be indebted to the ancient idea of political virtue, and to be acutely aware of being part of a long tradition of female political commentary. This work will be of tremendous interest to political philosophers, historians of ideas, and feminist scholars alike. (shrink)

Discourses of race, gender and religion have scripted the terms of engagement in the war on terror. As a result, Muslim feminists and activists must engage with the dual oppressions of Islamophobia that relies on re-vitalized Orientalist tropes and representations of backward, oppressed and politically immature Muslim women as well as religious extremism and puritan discourses that authorize equally limiting narratives of Islamic womanhood and compromise their human rights and liberty. The purpose of this discussion is to examine the (...) way Muslim women have been discursively scripted from these opposing and contradictory spaces, and to explore the negotiations and contestations made by both secular and faith-centred Muslim feminists in combating these oppressive arrangements. In the first part of the discussion, I will draw on post-colonial and anti-racist feminist analyses to map out the complex interactions of race, gender, sexuality and religion in earlier imperial practices of conquest and colonization and examine how the continuing legacies of these encounters implicate the current "war on terror". In the second part of the discussion, I will examine Muslim women's feminist political engagement with and resistance to the concomitant factors of imperial and fundamentalist domination and will craft a better understanding of how these factors variously shape and are shaped by Muslim women's responses to them. (shrink)

Combating homophobia, racism, sexism, and other forms of discrimination and violence in our society requires more than just focusing on the overt acts of prejudiced and abusive individuals. The very intelligibility of such acts, in fact, depends upon a background of shared beliefs, attitudes, and behaviors that together form the context of social practices in which these acts come to have the meaning they do. This book, inspired by Wittgenstein as well as feminist and critical race theory, shines a critical (...) light on this background in order to show that we all share more responsibility for the persistence of oppressive social practices than we commonly suppose—or than traditional moral theories that connect responsibility just with the actions, rights, and liberties of individuals would lead us to believe. First sketching a nonessentialist view of rationality, and emphasizing the role of power relations, Peg O’Connor then examines in subsequent chapters the relationship between a variety of "foreground" actions and "background" practices: burnings of African American churches, hate speech, child sexual abuse, coming out as a gay or lesbian teenager, and racial integration of public and private spaces. These examples serve to illuminate when our "language games" reinforce oppression and when they allow possibilities for resistance. Attending to the background, O’Connor argues, can give us insight into ways of transforming the nature and meaning of foreground actions. (shrink)

Many liberal democracies have legal restrictions on nudism. This article argues that when public nudity does not pose a health threat, such restrictions are unjust. To vindicate this claim, I start by showing that there are two weighty interests served by the freedom to be naked in public. First, it promotes individual well-being; not only can nudist activities have great recreational value, recent studies have found that exposure to non-idealised naked bodies has a positive impact on body image, and, ultimately, (...) on life satisfaction. Second, public nudity has expressive value; apart from being a constitutive element of various spiritual and religious worldviews, public nudity is frequently used to protest social and political evils. As I go on to argue, the reasons for abolishing current anti-nudist laws that stem from these interests are not overridden, let alone cancelled, by the offence that public nudity might cause. Indeed, whereas my principal aim is to defend the freedom to be publicly naked when this poses no health threat, I will contend that states should recognise this liberty as a distinct legal right rather than try to subsume it under existing rights or secure it simply by excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and disorderly conduct. (shrink)

1Preface: Malthus the Utilitarian vs. Malthus the Christian moral thinker. The chapter aims at reconstructing the deadlocks of Malthus scholarship concerning his relationship to utilitarianism. It argues that Bonar created out of nothing the myth of Malthus’s ‘Utilitarianism’, which carried, in turn, a pseudo-problem concerning Malthus’s lack of consistency with his own alleged Utilitarianism; besides it argues that such misinterpretation was hard to die and still persists in Hollander’s reading of Malthus’s work. ● -/- 2 Eighteenth-century Anglican ethics. The chapter (...) gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology and how two Cambridge fellows, John Gay and Thomas Brown worked out a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number of possible sets of laws on the basis of a maximizing criterion, happiness for his creatures. ● -/- 3 Malthus’s meta-ethics. The chapter reconstructs the two ethical chapters of the second Essay. It argues that Malthus’s ethics is not dependent on Paley’s, but is derived from Cumberland, Butler, Gay, Brown. Besides, it argues that theodicy takes a new place in the 1803 Essays and ethics becomes a key to theodicy. The new solution is that, once it has been proved that passions can be mastered and that a world where passions are under control would be a comparatively happy place, a society where moral restraint prevailed would make the middling ranks more numerous, reduce dependence, and preserve liberty. ● -/- 4 Malthus’s early normative ethics: a morality of freedom. The chapter reconstructs young Malthus’s views on the foundations of ethics, proving his adhesion to voluntarist consequentialism. Then it reconstructs his treatment of political issues, whence a clear stance emerges in favour of traditional Whig concerns, such as political freedom, personal independence and dignity. Finally, it gives a fresh look at the theological argument in the two well-known final chapters, locating it in the context of consequentialism, voluntarism, and quasi-Leibnizian theodicy. ● -/- 5 Malthus’s intermediate normative ethics: a morality of prudence. Malthus’s normative ethics focuses on two main ‘natural’ virtues, benevolence and chastity, and three artificial virtues. These include love for equality and love for liberty. A special place is granted to another virtue, prudence, which is the link between natural and artificial virtues. This special virtue also provides an invisible link between the private and the public domains, in that it contributes to combine self-love with general happiness. This is granted by the unintended results mechanism, or “the happiness of the whole is to be the result of the happiness of individuals, and to begin first with them. No cooperation is required”. ● -/- 6 Malthus’s mature normative ethics: a morality of humanity. The chapter describes reactions by Evangelicals, such as Gisborne, Sumner, and Chalmers, to Malthus’s theory and Malthus’s transformation of his own system in order to pave objections. This amounts to incorporating The Evangelicals’ ideas into his own system. The friendly controversy with his Evangelical fellow-travellers yielded several important changes in 1806, 1817, and 1826 editions of the second Essay in the formulation of Malthusian ethics, in the adoption of moral improvement instead of happiness as the variable to be maximised, in the adoption of generalized education as the main weapon in the war on poverty. ● -/- 7 Malthus’s applied ethics. The chapter reconstructs Malthus’s treatment of a few issues in ‘applied ethics’, sexual morality, public morality, poverty, and besides, war and slavery. On the first issue, he argues the duty to marry only at a time when one is ready to carry the burden of six children as a moral duty imposed by prudence and rejects birth control because of its alleged effect of encouraging ‘indolence’. On the second issue, he defends a peculiar kind of Whiggism as anti-Machiavellian politics centred on rights, equality, and dignity. On the third issue, his final approach is a kind of Institutional approach to poverty, making room for generalized basic education, free markets for labour and allowing for a subsidiary role for private beneficence. The goal to be aimed at is bringing about circumstances which tend to elevate the character of the lower classes of society and offer them a chance of being respectable, virtuous and happy. ● -/- 8 Conclusions: strengthening the theological foundation. Malthus’s criteria for policy appraisal were not utilitarian ones. His normative ethics and his politics were sharply different from Bentham’s. Utility is just one element in Malthus’s ethics, going with laws of nature and rights, and ironically, far from being a Benthamite insertion, is the most markedly theological element in Malthus’s system of ideas. ● -/- . (shrink)

When Mill's The Subjection of Women was published in 1869 it was ahead of its time in boldly championing feminism. It failed to inaugurate a respectable intellectual debate. Feminist writers have tended to refer to it with respect but without any serious attempt to come to grips with Mill's actual arguments. Kate Millett's chapter in Sexual Politics is the only sustained discussion of Mill in the feminist literature that I am aware of, but it is not from a philosophical (...) viewpoint, and deals with Mill only in the service of an extended comparison with Ruskin. Philosophical books on Mill give the essay short measure. Alan Ryan in J. S. Mill heads one chapter ‘Liberty and The Subjection of Women’, but the former work gets twenty-six pages and the latter only four. Ryan says that ‘it is almost entirely concerned with the legal disabilities of women in Victorian England’. H. J. McCloskey, injfohn Stuart Mill: A Critical Study, gives the essay one and a half pages, commenting that it reads ‘like a series of truisms’ and seems so unimportant today because equality of the sexes has been achieved! (shrink)

Why does agency-the capacity to make choices and to act in the world-matter to us? Why is it meaningful that our intentions have effects in the world, that they reflect our sense of identity, that they embody what we value? David Kyuman Kim addresses these crucial questions by uncovering the political, moral, philosophical, and religious dimensions of human agency. Through a critical engagement with the work of theorists such as Judith Butler, Charles Taylor, and Stanley Cavell, Kim argues that late (...) modern and postmodern agency is found most effectively at work in what he calls "projects of regenerating agency" or critical and strategic responses to loss. Agency as melancholic freedom begins and endures, Kim maintains, through the moral and psychic losses associated with a broad range of experiences, including the moral identities shaped by secularized modernity and the multifold forms of alienation experienced by those who suffer the indignities of racial, gender, class, and sexuality discrimination and oppression. Kim calls for renewing the sense of urgency in our political and moral engagements by seeing agency as a vocation, where the aspiration for self-transformation and the human need for hope are fundamental concerns. (shrink)

In this article, Brison extends the analysis of freedom developed in Nancy J Hirschmann's book, The Subject of Liberty: Toward a Feminist Theory of Freedom, to an area of controversy among feminist theorists: that of sex work, including prostitution and participation in the production of pornography. This topic raises some of the same issues concerning choice and consent as the three topics Hirschmann discusses in her book—domestic violence, the current welfare system in the United States, and Islamic veiling—but it (...) also raises some distinct ones concerning the social construction of sexuality and possible conflicts between the freedom of some women and the freedom of others. (shrink)

It is argued that it is not enough for feminist standpoint theory to argue that a feminine standpoint is better than a masculine one because of its genesis in female psycho-sexuality, it needs to show that its content is actually objectively more accurate. It then argues that historical feminists, such as Mary Wollstonecraft, have in fact tended to adopt a justice perspective, grounded in reason, which is objectively of greater value than that developed by many male authors, because these historical (...) writers have failed to think that justice is incompatible with feeling and emotion and have attempted to combine the importance of sympathy, empathy, and feeling with the need for equality, liberty, and fairness. (shrink)

In this work, Professors Rosenfeld and Mancini have brought together an impressive group of authors to provide a comprehensive analysis on the greater demand for religions exemptions to government mandates. Traditional religious conscientious objection cases, such as refusal to salute the flag or to serve in the military during war, had a diffused effect throughout society. In sharp contrast, these authors argue that today's most notorious objections impinge on the rights of others, targeting practices like abortion, LGTBQ adoption, and same-sex (...) marriage. The dramatic expansion of conscientious objection claims have revolutionized the battle between religious traditionalists and secular civil libertarians, raising novel political, legal, constitutional and philosophical challenges. Highlighting the intersection between conscientious objections, religious liberty, and the equality of women and sexual minorities, this volume showcases this political debate and the principal jurisprudence from different parts of the world and emphasizes the little known international social movements that compete globally to alter the debate's terms. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

In this article, Brison extends the analysis of freedom developed in Nancy J Hirschmann's book, The Subject of Liberty: Toward a Feminist Theory of Freedom, to an area of controversy among feminist theorists: that of sex work, including prostitution and participation in the production of pornography. This topic raises some of the same issues concerning choice and consent as the three topics Hirschmann discusses in her book—domestic violence, the current welfare system in the United States, and Islamic veiling—but it (...) also raises some distinct ones concerning the social construction of sexuality and possible conflicts between the freedom of some women and the freedom of others. (shrink)

I would like to suggest another way to go further toward a new economy of power relations, a way which is more empirical, more directly related to our present situation, and which implies more relations between theory and practice. It consists of taking the forms of resistance against different forms of power as a starting point. To use another metaphor, t consists of using this resistance as a chemical catalyst so as to bring to light power relations, locate their position, (...) and find out their point of application and the methods used. Rather than analyzing power from the point of view of its internal rationality, it consists of analyzing power relations through the antagonism of strategies.[…]Let us come back to the definition of the exercise of power as a way in which certain actions may structure the field of other possible actions. What, therefore, would be proper to a relationship of power is that it be a mode of action upon actions. That is to say, power relations are rooted deep in the social nexus, not reconstituted "above" society as a supplementary structure whose radical effacement one could perhaps dream of. In any case, to live in a society is to live in such a way that action upon other actions is possible-- and in fact ongoing. A society without power relations can only be an abstraction. Which, be it said in passing, makes all the more politically necessary the analysis of power relations in a given society, their historical formation, the source of their strength or fragility, the conditions which are necessary to transform some or to abolish others. For to say that there cannot be a society without power relations is not to say either that those which are established are necessary or, in any case, that power constitutes a fatality at the heart of societies, such that it cannot be undermined. Instead, I would say that the analysis, elaboration, and bringing into question of power relations and the "agonism" between power relations and the instransitivity of freedom is a permanent political task inherent in all social existence.[…]In effect, between a relationship of power and a strategy of struggle there is a reciprocal appeal, a perpetual linking and a perpetual reversal. At every moment the relationship of power may become a confrontation between two adversaries. Equally, the relationship between adversaries in society may, at every moment, give place to the putting into operation of mechanisms of power. The consequence of this instability is the ability to decipher the same events and the same transformations either from inside the history of struggle or from the standpoint of the power relationships. The interpretations which result will not consist of the same elements of meaning or the same links or the same types of intelligibility, although they refer to the same historical fabric, and each of the two analyses must have reference to the other. In fact, it is precisely the disparities between the two readings which make visible those fundamental phenomena of "domination" which are present in a large number of human societies.Michel Foucault has been teaching at the Collège de France since 1970. His works include Madness and Civilization , The Birth of the Clinic , Discipline and Punish , and History of Sexuality , the first volume of a projected five-volume study. (shrink)