The fixed aspects he sees as mainly two. Its weakness is that no one has so far identified the genes that predispose us to gene-preserving behaviour. Posner's analysis also suffers from the shortcomings of his underlying premises: Throughout, Posner summarises empirical research and gives weight to its findings. If pursued with characteristic Posnerian relentlessness, these premises could yield radically pro-gay policies. It is concerned with the regulation of marriage, contraception, abortion, homosexuality, pornography, rape and non-sexual reproduction. But Posner does not press his analysis and, instead, neglects his stated first principles.
Throughout, Posner summarises empirical research and gives weight to its findings. In our society, community attitudes continue to be antihomosexual. We are to understand the factors that influence sexual behaviour and then choose dispassionately the best policy for regulating it, just as legislators would choose the best agricultural policy, keeping in mind the warning: Men have on the whole a greater sex drive than women. Part I of this essay will summarize the part of Sex and Reason that deals with homosexuality and related policy issues. Unfortunately, because Posner applies Foucault's work in light of his own commitment to a Holmesian-style pragmatism, he does not pursue its critical implications. That movement has pioneered a new way of explaining Anglo-American law and showing how it could be improved. If pursued with characteristic Posnerian relentlessness, these premises could yield radically pro-gay policies. The book's major contribution to the gaylegal agenda is to wash the modem regulation of homosexuality in the "acid bath" of economic analysis and thereby to expose the emptiness of antihomosexual regulations. Hence the theory is not just economic but bio-economic. The laws that survive are those that best satisfy preferences because they unconsciously imitate the market. In questioning these premises, I rely on social constructionist theory developed preeminently by gay philosopher Michel Foucault, whom Posner frequently cites and praises. And because Posner invokes libertarian philosophy to criticize morality-based over regulation of sexuality, many of his arguments ought to be of welcome interest to members of bisexual, gay, and lesbian communities. Homosexuality is an important part of the book's descriptive and normative account of sexuality and its legal regulation. He argues that though there are fixed aspects of sexuality that cannot be altered, it is more responsive, by and large, to non-monetary costs and benefits than is commonly supposed. In addition to offering a more radical critique of existing regulation of homosexuality, as well as positive suggestions for a gaylegal agenda, social constructionism also engenders a deeper appreciation of Posner's Sex and Reason, whose pragmatist insights offer suggestions for gaylegal activism in the 's. Posner has now applied this framework to sex and its regulation in a book as bold and ambitious as anything he has written. All but a few people have a fixed preference either for the other sex or for their own, though if the cost of pursuing that preference is too great they look for a substitute. It analyses sex as a morally indifferent topic like eating. Underlying the analysis is a sort of legal Darwinism. These fixed points are better explained by socio biology than by environment or social pressures. You are not logged in If you have already registered please login here If you are using the site for the first time please register here If you would like access to the entire online archive subscribe here Institutions or university library users please login here. Its method is to analyse topics — for example, the law of compensation for accidents — in economic terms. It also traces how the US courts, disregarding market principles, first embraced and then withdrew from the sexual revolution of the Sixties and Seventies. But such negotiations would be costly and time-consuming, and accident law spares the parties this cost. But Posner does not press his analysis and, instead, neglects his stated first principles. Its weakness is that no one has so far identified the genes that predispose us to gene-preserving behaviour.
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Richard Posner - WikiLeaks and the First Amendment
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