1. Nate Oman - February 8, 2007 at 12:42 pm

   “Part of the fun of watching traditionalist legal actors is watching both how insistent they are that their classifying reflects some natural reality and how nervous they are that legal classifications might work against their preferred social order.”

   In fairness, I would point out that if in fact certain classifications are “natural” then one might object to laws attempting reclassification not on the grounds that such a reclassification will spell the end of the natural order, but rather on the grounds that laws at war with nature are likely to produce greater unhappiness. I thought that this was the point of many natural law arguments. One can, of course, reject claims about what is or is not natural, but the discourse itself strikes me as being rather more substantive than your reduction to an amusing contradiction suggests.

2. John Armstrong - February 8, 2007 at 1:09 pm

   As the dutiful ex-boyfriend of a Wesleyan University student, I have to say that while “both” is a step forward, “neither” is ultimately the goal.

   Sex and gender are fantastically intricate subjects. Any finite list of labels is inherently reductive and (in an ideal legal and social system) shouldn’t matter at all anyway. Where would you put Prince? He’s certainly engaged in a fair amount of play with the boundaries of gender norms. What about Shirley Mason, who affected two male “personalities” among her 16?

   A simple dichotomy for sex — maybe supplemented with a heterosexual-homosexual spectrum for partner preference — may suffice for the majority of the population, but there will always be boundary cases or things just simply not on the radar. You’re never going to handle everyone, so it’s best to just put “nothing”, or some sort of catchall “other” in whatever classification you use.

3. Nate Oman - February 8, 2007 at 1:20 pm

   “As the dutiful ex-boyfriend”

   I would appreciate the use of less reductionist language. Thank you.

4. Donald Braman - February 8, 2007 at 1:52 pm

   Nate,

   While it’s true that our social order does reflect a common respect for gravity, mass, etc., we don’t distribute social status along those lines. It’s the insistence on a natural *social* order that makes traditionalists so interesting (or, as you put it, amusing).

   Maybe you’ll agree with this: Part of the fun of watching postmodern theorists tackle serious social problems is in their belief that simply pointing out that something is socially constructed will liberate people from the construct.

   -Don

5. Maryland Conservatarian - February 8, 2007 at 2:50 pm

   I kind of agree – what, if for instance, we just don’t classify college sports teams by gender but instead just had one team per sport – may the best athletes make the cut. Rid of all that Title IX distraction (which merely perpetuates all this “natural order” nonsense by implying that women need special programs because they can’t compete against men in these areas) and saving money by just having only half as many teams, we can further amuse ourselves by watching the traditionalists harrumph about the changing nature of the games. We’ll truly know we’ve broken outside the evil and outmoded mindset of the traditionalists when we can stand and cheer honorary Michigan Captain Catherine MacKinnon as she leads her Wolverine team of whatevers-it’s-not-important into the Rose Bowl.

6. Donald Braman - February 8, 2007 at 3:29 pm

   I can’t you think deserves more mocking: The traditionalists who disparage the attempt to equalize the social status of same-gender sports under Title IX, or the social deconstructor who thinks the only reason Catherine McKinnon doesn’t play pro football is an illusory gender role. Either way, that is one football game I would not want to miss. tell who

   But I wonder whether the census is analogous to college football. What, exactly, would be at stake in altering our census-taking practices?

7. Just Another Commie Pinko Liberal Pomo from St. Mary's County - February 8, 2007 at 4:12 pm

   As a dutiful postmodernist graduate of a liberal arts college, I am not naive enough to believe that simply pointing out that something is socially constructed will liberate people from the construct. Most people are just not up for that much heavy thinking. But who can blame them? It can be very depressing.

8. Nate Oman - February 8, 2007 at 4:46 pm

   “As a dutiful postmodernist graduate of a liberal arts college, I am not naive enough to believe that simply pointing out that something is socially constructed will liberate people from the construct. Most people are just not up for that much heavy thinking. But who can blame them? It can be very depressing.”

   There is also a problem in that the pomo insight is frequently quite benal. The fact that we know something is conventional really tells us nothing one way or another about how the conventions ought to be structured other than that appeals to nature or immutable essences are out. I suspect that actual believers in nature and immutable essences are less common than the pomo critics assume.

   When you have a hammer, everything looks like a nail…

9. Nate Oman - February 8, 2007 at 4:52 pm

   Donald: I don’t necessarily disagree with you, although I do think that we allow our belief in the immutability of something like gravity to effect the way in which we structure the law, if not overtly so. Consider, for example, objective standards of foreseeability in various contexts in which people will be held to a particular understanding of how the world operates, eg if I drop an anvil over your head, it will fall.

   FWIW, I am actually skeptical of many arguments about human nature, as I do think that most human arrangments are a matter of convention. However, I can imagine an argument that says something like this:

   Granting the premise that human beings are naturally more likely to flourish under conditions X, the law ought to be organized so as to facilitate conditions X and discourage not-X.

   One can, of course, have lots of arguments about what constitutes condition X, and one can even question the existence of a nature that dictates the relative advantage of conditions X. However, given the structure of the argument, there is nothing about saying we ought to legislate with conditions X in mind that in and of itself undermines the idea that conditions X are defined by some law of nature.

10. Nate Oman - February 8, 2007 at 5:00 pm

    Here is a concrete example of a law based on nature that even leftie pinko pomo humanities types might be willing to get behind:

    As a matter of biological fact, the cognitive capacity of human beings is limited. This is not a matter of our social conditioning, conventional structures, or some other Foucauldian will-o-the-wisp. It is a matter of how brains are neorologically wired. Given the inherent biological limits on human cognition, one ought not to structure one’s laws around a model of perfect, classical, economic rationality, since such a model makes cognitive demands in terms of informational processing that are unrealistic given the natural capacity of human brains.

    Ergo, we ought to adopt paternalistic consumer protection legislation.

    The premises are different, but the structure of this argument seems remarkably similar to claims about the naturalness of certain gender roles, their roles in human flourishing, and the need for the law to accomodate this fact. One can disagree with such an argument without getting into the whole pomo metanarrative by simply arguing that particular premises are mistaken.

11. Donald Braman - February 8, 2007 at 5:12 pm

    Nate: True, and part of what makes you (and me) skeptical about human-nature arguments is how often they’ve turned out to be wrong in the past. They probably haven’t been wrong all that often about the naturalness of anvil-on-head type things, but have been more often when thinking about the other sorts of claims like “women aren’t suited for politics” and “only heterosexuals can be trusted to care for children”. Part of what is interesting about these latter claims is that they are contested along readily discernible lines. Where variation about human nature is hotly contested, I’d be especially suspicious.

12. Donald Braman - February 8, 2007 at 5:22 pm

    ftoosi: To hear Foucault tell it, pointing out social construction is just about the most important thing a person can do.

    http://www.youtube.com/watch?v=hbUYsQR3Mes

    I agree with you that it is, at best, a first step. At worst, though, it can substitute for social action.

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