Can Sex Be Reasonable?

Columbia Law Review 93:3 (April, 1993).

In his Introduction to Sex and Reason, Richard A. Posner says that his “ambition is to present a theory of sexuality that both explains the principal regularities in the practice of sex and in its social, including legal, regulation and points the way toward reforms in that regulation” (pp. 2-3). Although he states that his emphasis is on positive rather than normative analysis, his book is filled with policy recommendations and other prescriptions. He describes the normative side of his theory as “a libertarian — not to be confused with either libertine or modern liberal — theory of sexual regulation” (p. 3). Libertines and liberals will not, however, find much to complain about in Posner’s libertarianism. He would permit law no role in maintaining a community’s moral ecology: “Government interference with adult consensual activities is unjustified unless it can be shown to be necessary for the protection of the liberty or property of other persons” (id.).¬†And, as Elizabeth Kristol observes, “[o]ver and over . . . Posner extols the virtues of the [permissive or ‘morally indifferent’] Swedish approach to sex.”¬†Furthermore, orthodox liberals will be pleased (and perhaps a bit surprised) to find that Judge Posner seems perfectly comfortable with the active role played by courts in advancing significant aspects of the sexual revolution in the United States; indeed, he is, if anything, critical of the Supreme Court for not going far enough (e.g., pp. 324-50).