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David M. Estlund - Sex, Preference, and Family: Essays on Law and Nature

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The public furor over issues of same sex marriages, gay rights, pornography, and single-parent families has erupted with a passion not seen since the 1960s. This book gathers seventeen eminent philosophers and legal scholars who offer commentary on sexuality (including sexual behavior, sexual orientation, and the role of pornography in shaping sexuality), on the family (including both same-sex and single-parent families), and on the proper role of law in these areas. The essayists are all fiercely independent thinkers and offer the reader a range of bold and thought-provoking proposals. Susan Moller Okin argues, for instance, that gender ought to be done away with--that differences in biological sex ought to have no more social relevance than ones eye color or the length of ones toes--and she urges that we look to same-sex couples as a model for households and families in a gender-free society. And Cass Sunstein suggests that the Supreme Court case Loving vs. Virginia (which overthrew the ban on interracial marriages in Virginia) might be a precedent for overturning laws that bar same-sex marriage: just as Loving overturned miscegenation laws because they were at the service of white supremacy, Sunstein shows, the laws against same-sex marriages and homosexuality are at the service of male supremacy, and might also be overturned. Of vital importance to anyone interested in sexuality, homosexuality, gender, feminism, and the family. Sex, Preference, and the Family both clarifies the current debate and points the way toward a less divisive future.

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title Sex Preference and Family Essays On Law and Nature author - photo 1

title:Sex, Preference, and Family : Essays On Law and Nature
author:Estlund, David M.
publisher:Oxford University Press
isbn10 | asin:0195122879
print isbn13:9780195122879
ebook isbn13:9780585278339
language:English
subjectPersons (Law) , Sex and law, Domestic relations, Natural law.
publication date:1998
lcc:K625.S49 1998eb
ddc:346.01/5
subject:Persons (Law) , Sex and law, Domestic relations, Natural law.
Page iii
Sex, Preference, and Family
Essays on Law and Nature
Sex Preference and Family Essays on Law and Nature - image 2
Edited by
David M. Estlund and
Martha C. Nussbaum
Page iv Oxford University Press Oxford New York Athens Auckland Bangkok - photo 3
Page iv
Oxford University Press
Oxford New York
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and associated companies in
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Copyright 1997 by Oxford University Press, Inc.
Published by Oxford University Press, Inc.
198 Madison Avenue, New York, New York 10016
Oxford is a registered trademark of Oxford University Press, Inc.
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Sex, preference, and family: essays on law and nature
edited by David M. Estlund and Martha C. Nussbaum
p. cm. Includes bibliographical references and index.
ISBN 0-19-509894-3
1. Persons (Law). 2. Sex and law. 3. Domestic relations. 4. Natural law.
I. Estlund, David M. II. Nussbaum, Martha Craven, 1947- III. Title: Laws and nature.
K625.L39 1996
346.01'5
[342.615]DC20 95-49825
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
Page v
PREFACE
Picture 4
And Venus joined the bodies of lovers in the woods. For each woman was made receptive either by mutual desire or by the violent force and overwhelming sexual energy of the male, or by a priceacorns and arbute-berries, or choice pears.
LUCRETIUS, On The Nature of Things
Picture 5
Not only among animals domesticated and reared by us but also among the other species there are those which appear to have self-restraint. When the Egyptian crocodile... is inclined to copulate, he diverts the female to the bank and turns her over, it being natural to approach her when she is lying on her back. After copulating, he turns her over with his forearms. But when she senses the copulation and the impregnation, she becomes malicious in purpose and indicates that she desires copulation once more, displaying a harlot-like affection and assuming the usual position for copulation. So he immediately comes to ascertain, either by scent or by other means, whether the invitation is genuine or merely pretense. By nature he is alert to hidden things. When the intent of the action is truly established by their looking into each other's eyes, he claws her guts and consumes them, for they are tender. And unhindered by armored skin or hard and pointed spines, he tears her flesh apart. But enough about self-restraint.
PHILO, On Animals
Picture 6
"How do you mean, Hieron? Are you telling me that erotic passion for young men does not grow by nature in a ruler, as it does in other people? How is it then that you are in love with Dailochos?" "My erotic passion for Dailochos is for what human nature perhaps compels us to want from the beautiful, but I have a very strong desire to attain the object of my passion only with his love and consent."
XENOPHON, Hieron
We know that law and custom influence the shape of our lives in many ways. We are members of a legal and political order, and we participate in that order not only when we actively function as citizens but also when we enjoy the security and freedom from care that only a system of law can provide. And yet we frequently imagine that we are also inhabitants of a prelegal realm of "nature," which constrains and guides our choices in a multitude of ways. We imagine that we come into the world as bearers of a "human nature," which leads us to want certain things and to avoid others, and that this "nature,'' though it can be either encouraged or suppressed by laws and social forces, is not fundamentally shaped or altered by them. We are especially likely to think of "nature" and the "natural" when we think of the intimately personal and (at least apparently) private parts of our lives: our sexual desires and activities,
Page vi
our love and personal commitment, our membership in families. All of this is easily imagined as forming a prepolitical domain of the "natural" or "personal," which law may regulate, but does not help to create.
And yet this idea of a distinction between nature and law, between the personal and the political, is much more difficult to maintain than one might at first suppose. Consider the three quotations above, all from ancient philosophical sources, all lying close to the origins of the Western philosophical tradition. They use the nature/law distinction; and yet, in the process of elaborating it, they give us reason to call it into question. Lucretius tries to imagine a time when human beings existed outside of law and society "in the manner of the beasts." He indicates, not surprisingly, that even in this prelegal condition they would still desire and choose sexual activitythat this is part of the "nature" that law will later restrict, but not modify. Yet the detailed description he gives us is fascinating for the way in which it casts doubt on some aspects of the nature/law distinction. On the one hand, the account of prelegal human sexuality leaves out a huge amount of what has been thought of as the domain of the private and personal: the family, the male-dominated household, the subordination of women. All this Lucretius intuits as an artifact of custom and law, not something that can be coherently imagined without laws and institutions. He cannot imagine women in the state of nature agreeing to sex unless they get something out of it, whether a price or some sexual pleasure of their ownunless, of course, they are simply raped. In his view, the dependence and domestic submission of women is thoroughly unnatural and awaits the creation of complex forms of political life.1 As he later shows, it is only the transition to settled agricultural life and the need for male protection of offspring that give rise to the patriarchal family in its current form.
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