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The Radical Feminist Critique of Sex and Reason University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1992 The Radical Feminist Critique of Sex and Reason Richard A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Posner, Response, "The Radical Feminist Critique of Sex and Reason", 25 Connecticut Law Review 515 (1992). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE RADICAL FEMINIST CRITIQUE OF SEX AND REASON Richard A. Posner* INTRODUCTION T HE three commentaries on Sex and Reason' to which the editors of the Review have invited me to respond are written from a self- identified feminist standpoint, as is a fourth, similar in many respects, published in the Harvard Law Review.2 There are significant differ- ences in tone and approach among the papers, but they are recogniza- bly of a type. I hesitate to call the type feminist, because that would make of feminism a sectarian, carelessly reasoned, and faintly nasty, enterprise, enunciating radical dogma in the guise of combating stereo- types, overlooking convergence of ends in order to impose an orthodoxy of means, ascribing disagreement to gender. Properly understood, femi- nism as a branch of learning is the study of women in society, with emphasis on the effects on them of social practices and public policies, with due regard for what women themselves (often long ignored) have said or say, with sincere concern for women's welfare, and with a heavy dose of skepticism about theories of a theocratic or otherwise dogmatic cast that teach that women are predestined to be subordinate to men. On this construal of feminism, John Stuart Mill is a feminist as well as Catharine MacKinnon; Mary Wollstonecraft as well as Andrea Dwor- * Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. I thank Katharine Bartlett, Lawrence Lessig, Martha Nussbaum, Charlene Posner. and Cass Sunstein for many helpful comments on a previous draft of this paper, and Benjamin Aller for valuable research assistance. 1. RICHARD A. POSNER. SEX AND REASON (1992). 2. Gillian K. Hadfield, Flirtingwith Science: Richard Posner on the Bloeconomics of Sexual Man, 106 HARv. L. REV. 479 (1992) (book review). In view of the similarity, I shall take this opportunity to reply to Professor Hadfield as well. 3. The papers variously describe my book as "harmful and dangerous," "thoroughly mud- dled," "potentially oppressive," "misogynistic," "smug," "pat," "simplistic," "formulaic: "merely a rehearsal" of "superficial," "insipid stereotypes," and, of course, "male-centered." Professor Hadfield's surreply, Gillian K. Hadfield, Not the "Radical" Feminist Critiqueof Sex and Reason. 25 CONN. L. REV. 533 (1993), adds a few more choice epithets. HeinOnline -- 25 Conn. L. Rev. 515 1992-1993 CONNECTICUT LAW REVIEW [Vol. 25:515 kin; Martha Nussbaum as well as Martha Fineman. On this construal, rejection of biological and economic science, rejection of the evidence of one's senses, a left-wing vocabulary thick with words like "patriar- chal," "hegemonic," "colonizing," and "classism," and dislike of men coupled with suspicion of heterosexuality are adventitious rather than organic characteristics of feminism; they reflect the temporary domi- nance of radical feminism in the academy. On this construal, MacKin- 4 non's equation of radical feminism to feminism is wrong. Although critical of the tone, politics, general thrust, and many details of the four5 critiques of my book, I am nevertheless grateful for them. They identify and illuminate flaws in my treatment of female sexuality and therefore will be valuable to future researchers. THE AIMS OF Sex and Reason It would be presumptuous to assume that every reader of this ex- change has read Sex and Reason. I cannot reproduce the argument of the book in the compass of this brief reply, but I can say something about the aims and structure of the work that may help readers to orient themselves. Partly for the education of myself and my colleagues in the judicial profession-for we are called upon more and more to decide cases involving sexual conduct-and partly out of a long-stand- ing academic interest in the economics of nonmarket behavior, I set out to write a broad general work on human sexual practices and norms (legal and moral), unified around the theme that sexual behavior is rational in the economist's sense. Given the breadth of the intended work and the fact that there had been little previous economic writing on sex, I could not hope-quite apart from the limitations of my own competence-to accomplish the complete and definitive analysis of the economics of sexuality. I hoped to be able to show that a simple eco- nomic model could explain differences and similarities of sexual behav- ior and norms across different cultures and epochs and also could gen- 4. CATHARINE A. MACKINNON. FEMINISM UNMODIFIED: DiscouRsEs ON LIFE AND LAW 137 (1987); see also Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 833 & n.8 (1990). Which is not to suggest that radical feminist thought is a monolith, see. e.g., Katha- rine T. Bartlett, MacKinnon's Feminism: Power on Whose Terms?, 75 CAL L. REV. 1559 (1987) (book review), that all works of radical feminism have all the characteristics that I have listed (it is rather that such works bear a family resemblance, in Wittgenstein's useful sense), or that no radical feminists have made significant contributions to the study of sexuality. Apart from MacK- innon's well-known work, see, e.g., Ruthann Robson, Lesbianism in Anglo-European Legal His- tory, 5 WIS. WOMEN'S L.J. 1 (1990). 5. Five, with Hadfield's surreply, supra note 3. HeinOnline -- 25 Conn. L. Rev. 516 1992-1993 1993] ON SEX AND REASON erate new, counterintuitive, testable hypotheses concerning the incidence of different types of sexual behavior. The model viewed sex- ual behavior as the consequence of rational choices made in light of the relevant costs, including search, expected punishment, fertility, and dis- ease costs, and in light of benefits heavily influenced by innate or other- wise unshakable sexual preferences, for example, for same-sex relations or variety in sexual partners. I did not wish to be dogmatically insis- tent, however, that economics was the key that would unlock the secrets of human sexuality. I recognized the dependence of an eco- nomic theory of sexuality on the descriptive and analytical work of psy- chologists, historians, and sociologists, including specialists in women's and gay studies. I was also interested in what biology could contribute to an understanding not only of the physiological properties of human sexuality but also of the social dimensions, including differences be- tween male and female sexual behavior and the preference of some men and women for homosexual relations. I wanted to compare scien- tific and social scientific approaches to sexuality with the moral theo- ries that have been so influential in shaping mores and public policy. And I wanted to evaluate judicial performance in dealing with such issues of policy as what (if anything) to do about homosexual sodomy, surrogate motherhood, abortion, marital rape, pornography, and nude dancing. The result is a long book, and an eclectic one, though economics occupies center stage. The vastness of my canvas prevents the work from being exhaustive, although some readers may find it exhausting. I discuss the history of "sexology," the evolution of sexual mores from the ancient Near East to the present, the causes and incidence of male and female homosexuality, the effects and political economy of sex laws, the Supreme Court's sexual and reproductive decisions, monog- amy and polygamy, adoption and artificial reproduction, eugenics and population policy, pornography and erotic art, divorce, prostitution, dis- crimination against homosexuals, abortion and contraception, racial differences in sexual behavior, marital and nonmarital rape, child sex- ual abuse, transvestism, the "social construction" of sex, the changing role of women, the Swedish experiment in sexual egalitarianism, and other topics besides. Although the emphasis is descriptive and explana- tory-hence positive rather than normative-I also offer views on a number of normative issues. The orientation that generates these views is libertarian, in the sense in which that word could be used to describe the political philosophy of John Stuart Mill. I argue that adults (gener- HeinOnline -- 25 Conn. L. Rev. 517 1992-1993 CONNECTICUT LAW REVIEW [Vol. 25:515 ously defined to include much of the teenage population) should be free to engage in consensual sexual relations and related conduct (such as the consumption of pornography and the formation and enforcement of surrogate-motherhood arrangements) unless there are palpably adverse consequences for nonconsenting third parties. I argue that government should encourage the provision of information that enables people to minimize the adverse consequences of sex-information about contra- ception, for example, in order to minimize the incidence of abortions and unwanted births. A book of such wide scope, dealing with so controversial and emo- tional a subject, and one on which firm data are so difficult to come by,
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