Hello again! and welcome back to Optimisticality's little slice of the www. Its here that I jot down my thoughts and the wanderings of a wistful mind. Over the past week, I've spent time as per usual listening to people, prepping podcasts & chatting with friends/colleagues whilst attempting to navigate the world as I see it. (and getting stuck in locked carparks... ) During all this I was struck by an idea that popped up in a recent conversation.
"Someone should be able to walk down the street stark bollock naked and not have anyone touch them without permission" Interesting isn't it? The comment was made during a discussion on "consent" as part of a wider conversation on where the feminist movement is presently, but more of that later. You may remember the case of the young woman in Ireland who had her underwear used as evidence that she was "giveing implied consent" after she suffered a sexual assault.
https://www.bbc.co.uk/news/world-europe-46207304 There was an outcry, and rightly so. Leading to underwear being displayed on the floor of the house of commons. The idea that "a person" might be deemed to have given implied (or any other type of) consent by means of attire is obviously ludicrous.
Isn't it? But could we actually conceive of a world where a person could walk down the road naked and NOT receive unwanted sexual attention (be it comments or otherwise) from observers? Or would their public action of the omission of clothing be deemed something akin to an invitation to comment? So let's jump into this particular rabbit hole.
"What IS public decency and where does it come from?" Broadly speaking our performative selves are made up of two overlapping components:
1)What we look like
2) How we act. These two things are often tailored to the situation. Attire that is suitable for the bar on a Friday may not cut it in the boardroom on Monday morning, and your best mate probably knows more about your behaviour than ya Mum, so we all moderate behaviours in some way as a result of something we might call a "social contract" A broadly defined set of behaviours that are agreed to be apropriate for an audience or a situation. These amount to rules that create a framework around which we can then construct our social environment. Thomas Hobbs and John Lock both wrote about this, in the 16th and 17th century, & although I don't have the space to go into a complete description of the arguments of either, there is a link at the bottom of the page for you to check out. The broad scope of Hobb's social ideas were that:
1)Humans are self interested
2) Humans are rational
3) The state of nature is a perpetual struggle to avoid death. 4) The monarch was deemed to rule by God. The rationality of humans results in a realisation that exclusive self interest isn't going to avoid the occurrence of the state of nature, which is to be avoided at all costs. Thus, Hobb's reasoned that humans therefore would and should submit to a rule of "common laws" for the "common good". A "Civilisation" In short Hobbs set up a dichotomy. Either sign up to the social contract of civilisation or risk returning to an awful state of perpetual war that is "untamed nature" He set this within an argument of submitting to the rule of a God given Monarch since no matter how bad that might be, it was a least better than the alternative. We might pick holes in this because there is of course nothing to stop a monarch being self interested, and screwing up the lives of the subjects, perhaps leading to war.. and this is exactly what Locke did. John Locke didn't see the state of nature as this wild untamed thing, but merely a state of freedom. He also disagreed with the view posited by Hobbs that religion was by default above the state, and by extention so too were churches and their figure head, the Monarch. Locke's real leap here is to separate "morality" from the the idea of "civilisation", by placing the idea of God as a natural phenomena above ALL men, monarch included. Thereby, along with his other writings, positing an idea of a personal morality. (both Hobbs and Locke existed in a time of slavery and thus their insights were limited, but you get the gist)
OK, so I know It's a long way from a pair of knickers in a court room in the 21st century, but bear with me....
Todays social contract. Those of us who live within the LGBPTQI descriptions of human experience are by default social observers. (Sartre, De bois) and the very idea of "coming out" is itself the breaking of a social taboo, and formerly the UK law. In other countries it remains so to this day, a revolutionary and deliberate act. By extension of Hobbs' view of a social contract, it would also be deemed irrational, having no place in the common good, and therefore unethical. ( a version of the universalizable argument ) The "medicalisation of the homosexual" is as good example of this relationship between the individual and the social contract, and in making the following arguments I've drawn greatly on the work of Emma Aggar in her article here. In particular consider that the short lived diagnosis of Ego-dystonic Homosexuality (EDH)* in the DSM-III in 1980 that Emma mentions bears a striking resemblance to that of "Gender identity disorder" Both now superseded. The term GID is no longer used, having been replaced by "gender incongruence". The new term has been taken out of the mental health classification and placed under sexual health in ICD 11 of 2018. (You can read about that in this article here "Gender incongruence is no longer a mental disorder." by Dr. María Fernández Rodríguez et al.) *where a person has significant cognitive dissonance resulting from their homosexual orientation and their sense of self. My point is that the EDH and GID diagnoses both centre on the individual having difficulty with the social contract as it pertains to their behaviour. The historical medical establishment had suggested the individuals might be "faulty", and need "fixing" but that hasn't worked, and the reevaluation and reclassification of these human experiences in light of that outcome, allied with further arguments pertaining to causality, is evidence that the (medical) social contract is itself changing instead of "the individual"
What a performance! Outside of the medical sphere, the performative aspects of existence are policed to create conformity, and if conformity is not possible, then exclusion by exception, since it's deemed unethical, false, wrong, or - even more insidiously - just "disruptive". The recent protests of teaching LGBT acceptance in schools in Birmingham and Manchester are testament to that. We've seen a resurgence of older theological narratives suggesting a "love the sinner hate the sin" and/or casual discrimination, the sort of thing "yer dad" might say like: "it's fine for you, just not for me or my kids.." In the face of this pseudo liberal narrative, rather than stick by the ethical and evidentiary arguements for teaching children about acceptance, the authorities at time of writing have discontinued the lessons and our current PM refrained from outright condemning the protests in the house of commons. The "disruption to a childs education" was therefore deemed a greater threat than the "absence of" lessons in tolerance and acceptance of diversity could ever be to a child. Why so? The inference here is of course that if a person or organisation dresses or acts in a particular way it is "provocative", inviting, suggestive, distracting, harmful, or disrespectful, or any other such words to describe an idea that the attire/action is projecting an intent of the doer/wearer, and that any subsequent violence* done to them was therefore "invited" The school acted "provocatively" and thus "violence" in the form of protest is supposedly justified by a "moral" indignation at the "unethical" nature of this perceived "deviation from the norm" The end result is that the disruptive behaviour is policed, because its disruptive, and not directly because its right or wrong, (A caveat might that those who make or use the disruptive argument might hide their true ethical perceptions behind it - our current PM is rather Homophobic and doesn't have great record on Trans rights either - much like her church) The result is that we then end with a negative peace, one that is just an absence of conflict, rather than a positive one of agreement and solidarity.
This demonisation of "disruption" exists in legal circles too. An example would be the trans panic defence. Where you can argue that you murdered someone because you found out they were Trans, and have your sentence successfully commuted to manslaughter via argument of the deceased's.. .........what ? deception? questionable ethical and moral action? Yep .. this is still a legal defence - and a successful one - in much of America. Again it suggests that deviation from the norm, the presence of unruly behaviour is the causative factor in the judgement. *by violence in this instance I am specifically referring to any insult or injury however ever caused, verbal, or physical. wolf whistles, cat calls, shaming, prejudicial treatment, all the way up to and including murder. So, although we might think that the performance of an authoritative legal process is how those who "do not" adhere to the social contract are obliged to face just consequence. Whether through financial penalty, incarceration, or drinking hemlock poison in an Athenian courtroom, it is perhaps not so clear. Socrates, the teacher of Plato and the father of philosophy was himself subject to a social contract of his time and when he refused to partake in an immoral version of it, when asked to preside over a joint trial of the Arginusae Generals accused of treachery, since the law at that time stated that they should each be tried separately. (This is documented in "Xenophon's Hellenica" - and you can read an account here) - Shortly afterwards Socrates was himself accused of impiety and of corruption of the youth by introduction of new deities. He was tried by a court, convicted, and condemned to death as a result. But oddly Socrates' acceptance of his fate was also an acceptance of the social contract of law that lead him to be tried for not toeing the line in the first place. His death, accepted and willingly met, is perhaps a final socratic question that he left us. He may have fought the law, but who actually won?
Rule number one - make some rules.?
So in the above paragraphs we have travelled from the modern day Irish courtroom, to the 17/18th century philosophers study, back to the late 20th and early 21st century, via with a short stop in an athenian courtroom. We've touched on legal, medical philosophical and ethical and theological viewpoints. All in an effort to understand what this idea of "public decency" via a "social contract" might actually be, and from where it has been derived.
It has arisen like so many things, through an historical interplay of theocratic viewpoints, the idea of "common good", the influence of (and influences on) those in power at any given point and the building of a "Civilised Society", that demands acceptance of "the rules" whilst it simultaneously learns how to apply them by a literal process of trial and error, re writing (and erasing?) its mistakes as it goes. But, the contradictory kicker here is that in creating "the rules" someone or a "group of someones" obviously gets to decide what is or isn't acceptable. What is or isn't "normal" and why it is so. "Common" becomes "Normal", which becomes "ethical" by assumption of an "authority" being "wise" and the view of any deviation from the common norm morphs into "thats just wrong" In creating a "normal" we also by default create an "abnormal" The exception.
As with the Hobbs and Locke arguments above a person doesn't need to be a king or queen to be guilty of self-interest. ANY person, commoner or ruler, can act in their interest rather than that of the common good. So the only defence against this possibility is to question the authorities even as we collectively agree to their rule. To hold them accountable. We must therefore remember that "rules" are there to be challenged, barriers to be to be shifted, expectations to be confounded. Which then leads us to yet another question: Must people first obey the rules to a reach a point where they have the ability to affect change? Well not quite.
We live in a capitalist society. specifically at present Neo Liberal. As such the idea of a "market of ...insert metaphor here..... " has taken hold in common langue. When dating we say we're "on the market" or perhaps the view of education being a market place for ideas. In less scrupulous terms "people" and "power" are also for sale, as are things like influence and "platforms". Peter Coffin has a nice series of videos on this concept where he explains things considerably better, and in more depth, than I can in these few paragraphs, but essentially viewing "everything" as inevitably subject to and/or a product of competitive market forces is what has lead us to our current predicament.
People therefore can, and do, acquire "social capital" which when allied with the observers tolerance by way of a liberal viewpoint, allows them to position themselves as just participating in the market place of ideas, which isn't really in their control and therefore from their POV they suggest they are not responsible for.
This approach does two things:
1) Relies on the false equivalence principle (all ideas are created equal)
2) Removes the fact/opnion and evidence/individual distinctions Dr Jordan petterson is a master at manipulating this , as he proved in his comments regarding make up and high heels for women in the work place. He categorised them as, yup you guessed it distraction and sexually motivated, and therefore "wrong" but he hides the misogynistic stance of his core message under concern for damage to the "natural order of things" and a pseudo intelectual questioning of "the rules" (sounding familiar? (hey Dr Peterson, the 12th century called to say the Spanish Inquisition would like their logic and reason back... ) Dr Peterson is only able to do this because he had a platform of legitimacy in the form of an academic level of expertise, which is Social capital. Just in case you're looking for the biggest example of this social capital and market place of ideas? Donald Trump. He sold an "Idea" and as we now surely know the fact/opinon evidence distinction of the Trumpion era is very very very woolly indeed. Saying things like "there's good people on both sides", when considering a clash between alt right and anti facist movements is "selling" an idea of "equivalence" and because the true currency in that market is attention ... well need I say more? Remember New Zealand?
Karl Popper called this "The paradox of tolerance" Where unlimited tolerance will lead to the death of tolerance.
Back where we started....
So back at the top of this we had a barrister suggesting that pair of knickers were indicative of implied consent in a court room in November of 2018. Everything that I've talked about so far has a bearing on the socially relevant mindset of that barrister Who do we dress for? what is the purpose of performative acts of gender expression, or even just self expression? Why do people want to wear items of clothing and do things that others might disapprove of? Why do others disprove of those actions? The attacker was acquitted. It was deemed that the 17 year old woman had given consent, despite other evidentiary testimony. The entire case hinged on the interpretation of the issue of consent. Which one might say given all of the above is a form of "social contract" between two people?
Ok, thats seems reasonable, but that leads to the idea of contracts and agreements and dare I say it commodification in a very Neo liberal "market forces as natural law" survival of the fittest, sort of way. Don't agree? There was a case in Philidelphia, America where an escort was held at gun point and forced to perform sex acts with several men AFTER consenting to have sex with two of them in exchange for payment. The judge in this case ruled that the social contract in question was theft of services and did not constitute rape.
In other words both the barristers and the judges interpretations of the social contract are deeply deeply flawed. Because the same thought process underpinned the judgment in each case:
"Everything is for sale at the right price, but some sale's (and sales people) are more ethical than others" So if we tweak the initial idea a little, I wonder could we get to the point where
"Someone is able to walk down the street stark bollock naked and not have anyone touch them without permission" Maybe, but only if that person has enough "social capital" to deter those who otherwise might think they could afford the purchase price. To be continued???
The Social contract. https://www.iep.utm.edu/soc-cont/ The alleged rape https://www.irishexaminer.com/breakingnews/ireland/counsel-for-man-acquitted-of-rape-suggested-jurors-should-reflect-on-underwear-worn-by-teen-complainant-883613.html
trans panic defence