Reith lecture on expansion of law by Jonathan Sumption

[Spindelina]

Did anyone else listen to this today? (R4, 9am). I was in and out of hearing range of the radio, but what I heard sounded relevant to this board - about the increasing scope of the law, to encompass what might once have been regarded as differences of opinion.

I think I first started worrying about the policing of opinion when Simon Singh was sued for saying homeopathy was bogus.

It just hadn’t occurred to me that scientific disputes could be determined by law. I thought science was all about evidence, experimentation and peer review. Judges aren’t scientists. I wouldn’t necessarily expect them to understand medicine than I’d expect a doctor to understand obscure case law.

This is something that worries me about trans ideology. Sex isn’t a legal category, that can be redefined as simply as theft or trespassing. The law says you can own property and under what conditions others are entitled to it. That seems reasonable. But the ‘laws’ that tell us how planets orbit the sun are a different kind of law than what judges have dominion over. The law can restrict ownership of radioactive materials but it can’t dictate the half life of plutonium.

I suspect there is a large contingent that would say any word can be redefined by law.
I know it's not popular to point this out, but there were many similar arguments made around same sex marriage laws, and for a large number of progressives, if they pick apart those ideas with regards to women's rights, they see it as picking apart something they strongly believe with regard to marriage equality.

Particularly, on the rights question, the idea that it is discriminatory to deny people a legal category based on their biology is deeply felt by many now, I think more deeply than the idea that there could be protections related to sex.
The other is the idea of reproductive capacity being significant. This was argued to be insignificant in the definition of marriage because many people who marry are infertile or choose never to have kids. They see this as the same as saying you can't define woman or man by reproductive capacity, because many women or men cannot or choose not to become mothers or fathers.

I think for a lot of those people, they are stuck unless they can somehow revisit their whole thought process. This is why arguments with them around biology seem to get nowhere.

Except law didn't redefine "marriage." Marriage is a civic institution, and law opened that institution up to additional people. Conscription is a civic institution too, and conscripting women wouldn't redefine the word "conscription," it would merely open the institution up to more people.

"Woman" is not a civic institution any more than "lioness" or "ewe" is. It is a biological category NOT based on whether or not a human female chooses that to reproduce but based on the fact that, given a sexually dimorphic species, a woman is a member of that half of the species that would, if she chose to or if she could w/o health issues, gestate rather than impregnate. Woman CANNOT impregnate.

People get stuck in language traps and scientific bafflegab because a) they lack critical thinking skills or b) because it behooves them not to apply those critical thinking skills or c) because they have no background in science and so are arguing based on appeals to authority from those they can't understand have no authority over the subject.

But does anyone on earth truly believe it's possible to man to become a woman? Does anyone on earth truly deep down believe it's not possible to distinguish between men and women? Is any human being on the planet who is or has engaged or wishes to engage in heterosexual intercourse confused about whether or not they belong to that class of humans who gestate as opposed to that class of human who should have learned to put on a condom? Are there men out there rushing to Boots in the morning for Plan B because last night a woman didn't wear a condom? Does any human being on the planet imagine they were birthed from a penis?

Give me a break. It's all 100% sophistry.

Give me a break. It's all 100% sophistry.

THIS

mmm, yes I've thought about that Goosefoot
when the gay marriage thing was being debated I heard the arguement that 'marriage is between a man and a woman, that's what it means, you can't just change what it means'- which usually had the subtext, God invented marriage, so he gets to decide what it means.
OTOH, I hear, mainly from the youth, that a word can change it's meaning, that words are constantly changing their meanings, so therefore the meaning of 'woman' can easily be changed.
To which I say bollocks. Words do change their meanings, yes, but it's a gradual process that happens naturally over many years.
Marriage is a word that's especially likely to change it's meaning, because the concept of marriage is itself a human invention. Whereas 'woman' or 'man' are concrete nouns - nobody really, really doubts there meaning, and I bet there are direct translations in all languages and cultures for those words. Whereas 'marriage' is a loose concept that will have different meanings in different times and places.

oooh, bafflegab, I like it
a near cousin to psychobabble

Marriage is a social convention codified by law. It’s not a biological fact. Marriages might be recognised in one county but not another, or at one point in history and not another, based on sex, or age, or even race; biological facts are independent of social convention.

But in this context what we think about the legal side personally doesn't really matter. The total dismissal that you could even have a biologically defined relationship, based on sex, where the legal or even cultural element is mainly an overlay, is the problem. This idea is resoundingly dismissed, including here as we can see. Not worth thinking or talking about, bigoted. This is that inability of the left to even look at other viewpoints and try and understand where they are coming from, so they end up with a terrible myopia.

I'm in liberal wokesvile, North America, and people's viewpoints on how we define sex roles are consistently just extensions or even the very same arguments they heard about marriage equality. I just think it's incredibly naive to dismiss this, and as an explanation it goes a long way to showing why it is so difficult to reach people with what seem like obvious biological realities, and it also explains why these ideas gained traction so easily at this moment in history.

In the minds of people who have been trained in the progressive left, sex (and therefore marriage) is most fundamentally about love and attraction, which are of course subjective. Reproductive capacity is secondary to that - in fact it is barely connected for some. It resonates with well-off westerners because that's been their experience, and they've been trained for years, if they are progressives, to think in those terms.

Biologically that's not really accurate. Sex exists for reproduction, that's what it is. Love, pair bonding, etc, exist in various species like humans in order to facilitate reproduction. If we were not a sexually reproducing species we would not pair bond, in any configuration.

The difficulty is it's not that people just believe that sex is unimportant in the here and now for legal purposes for which we have marriage. They don't even accept the idea that the biological reality defines the nature of being sexed beings. They are strongly conditioned to deny that sex (the act and the role) is connected to biological functions, in case it could support the possibility of a social institution based on reproductive roles.

If they think that way about the reproductive act, then of course they will think the same way about reproductive roles like male and female. If sex isn't about reproductive capacity in a basic way, how could being a woman be about reproductive role in a basic way?

That's what you have to undermine when trying to convince someone that woman isn't a subjective role in someone's head, and it is hard going because there is probably a fair bit of unconscious effort that goes into maintaining that set of propositions, and a lot riding on it for many.

I'd point out here, marriage exists as a social institution even where there is no legal system. It's also just about as close to universal as you can find in human societies, there are clearly strong advantages to social customs and institutions around reproduction.

I see what you are getting at, Goosefoot, and there may well be some truth to it. It's not actually logical to think that way, though, IMO. After all, quite a lot of "reproduction" takes place outside of marriage, especially these days! And people marry when they are well past reproductive years, as well. Also, there's always been quite a strong tradition in our culture of viewing marriage as very much about companionship and mutual support combined with sex, IMO.

The key thing for me is that the concept of human "sexes" would be non-existent if we were all hermaphrodites, or reproduced asexually. When you think about it like this, it is obvious that the concept stems directly from reproductive roles, and it is simply nonsense to pretend that it doesn't.

Goosefoot I have experience too with the progressives you describe.

Their level of cognitive dissonance is astonishing, as they will talk about metoo, rape culture and male violence and then immediately segue into the notion that there is no such thing as biological sex.

They are enormously privileged people, both economically and culturally. They have been educated at some of the finest universities and liberal arts colleges in the world and live in some of the most expensive real estate in the world. Most of them do not have children.

It is quite easy for them to privilege subjectivity over material reality. At some point, that will be less true, as material reality does have a way of asserting itself.

Then there are the techie self-anointed philosopher-kings, who are also pushing this, not out of a truly progressive vision of the world, but from a hubristic notion that biological sex is a human reality they can hack exactly as they are also working to hack mortality itself ( for the wealthy, though, not for the plebeians.

I don’t waste my time trying to convince people out of faith-based beliefs ( because that’s what the privileging of subjectivity amounts to) or out of hubristic notions and instead focus my conversations on those who clearly DO understand the primacy and the limits of the material world. That is a huge swath of the populace.

But I also don’t assume that those in power are operating from this faith-based position. With rare exception, they are not; they haven’t given the issue that much thought. They just know, right now, who is buttering their bread.

My continued concern is that the backlash to genderism is going to be enormous, indiscriminate, and a tremendous fuel-source for the right-wing.

Exactly as the backlash to neoliberalism has been.

Kestrell
For me, I think of marriage in rather non-specific terms. It's basically a set of traditional cultural practices, legal or otherwise, that create obligations between people who could or do have children together and restricts who can form those groups. It's not just about the individuals being content with that, or even personal advantage for the powerful, it exists because it in some way serves the society overall to have those sets of obligations and restrictions. It's a good thing overall when closely related people won't be socially recognised in marriage, or when husbands have obligations to support dependents.
Going off to your local church or city hall would count in our culture, but so would a common law arrangement, as common law marriage exists for the same reasons. Even just living together but socially recognised as a couple might be considered a recognised form of marriage in our society now, though one with fewer protections.
So the question is what serves the needs of our society, if it's just a private thing, about companionship etc, no need to have it at all. Which is to say, it's a very concrete issue.

Yes, I wonder about a backlash as well. Either one that is evil, or just poorly thought out. A lot of meetoo was a poorly thought out response to sex positivity IMO. Not the end of the world but also not very effective and further obscures the root issues.

I also think there are a lot of privileged, and cynical, people involved in this. But I also think there are a lot of people who are not clear thinkers. Something that has really hit home for me over the past few years is the degree to which people are just not very clear in their thinking, or very self-aware. They are nice, they want to be nice, but they really depend on other people or society in setting out good thinking for them.