Sex and Reason

Sex and Reason

Sex and Reason

Sex and Reason

Synopsis

Sexual drives are rooted in biology, but we don't act on them blindly. Indeed, as the eminently readable judge and legal scholar Richard Posner shows, we make quite rational choices about sex, based on the costs and benefits perceived.

Drawing on the fields of biology, law, history, religion, and economics, this sweeping study examines societies from ancient Greece to today's Sweden and issues from masturbation, incest taboos, date rape, and gay marriage to Baby M. The first comprehensive approach to sexuality and its social controls, Posner's rational choice theory surprises, explains, predicts, and totally absorbs.

Excerpt

The diversity in sexual customs that was discussed in the preceding chapter is mirrored by diversity in the legal treatment of sexual behavior--most strikingly, of course, in Islamic societies, where the criminal law is drawn directly from religious law. Yet in most societies it is a distorting mirror in this sense: it is not the case that every sexual practice that is contrary to the mores of a society is made punishable by the laws of that society and that every sexual practice not contrary to those mores is permitted. The ancient Greeks, for example, regarded incest with horror, but did not (as far as we know) make it a crime. They considered lesbianism obscene, disgusting, but did not make it a crime either. Indeed, although almost everywhere abhorred, lesbianism has rarely been criminalized. The English common law, which meted out savage punishments to sodomites, did not punish lesbian relations at all; neither did German law during the Nazi regime. Prostitution has generally been disapproved of in Western societies but usually not punished-- and this as a matter of law, not just of practice. And even though traditional Catholic doctrine considered masturbation a worse sin than rape, masturbation was never made a crime, though rape was.

These are exceptions (to be explained, as far as possible, in subsequent chapters). In general, the most important of a society's sexual customs will be reflected in law, though not necessarily in law that is enforced; and so the severity of punishment provides an index of the fear and loathing that a particular sexual practice inspires. The retention on the statute books of laws that are unenforced, such as the laws in many states of the United States today forbidding adultery and fornication, may reflect the views of only a small minority of the population--or even sheer inertia. Moreover, one reason for punishing a crime heavily is that the probability of catching the criminal is low, and it is a reason independent of the gravity of the offense. But most crimes are difficult to detect in this sense, because most criminals take pains to elude capture; and retributive considerations strongly influence the design . . .

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