Towards a new set of behavioral standards, Part I: Beyond traditional Cultural Liberalism AKA How to Make Better Laws
I've been sitting on this for a while, but I felt it was time to finally put it up. In a world where identity politics, the fetishization of identity, and bigotry play such huge roles in individual , diplomatic, and governmental decisions, I think it's time we laid out a framework with which to talk about the specifics of identity, behavior, and speech, and provide a vocabulary and outline for policies surrounding these issues.I'd like to lay out here an outline of a simple, but complete set of rules used to determine a society's acceptance of behavior, along with a brief discussion of human attributes and their classification for discrimination and protection purposes. It will be somewhat US-centric in some of its examples, but its principles are applicable universally.
The reason for this piece is to try to describe a more unified set of rules, most of which are drawn from traditional Cultural Liberalism, the US Bill of Rights, and the Universal Declaration of Human rights. It's also drawn from Humanism. It would be used when deciding whether a particular behavior should be regulated/made illegal (at the legislative level) and hopefully as a basis for tolerance (at the individual level). Each behavior would be compared to the following rules, and would stop when it either fits the criterion, or falls off at the end. Behaviors which fall off at the end are likely to warrant being made illegal.
The Rules
1. Does this behavior affect only the self? Examples: non-assisted suicide, non-smoking drug use, "cutting", tattooing/piercing, masturbation.
2. Is this behavior one in which two or more individuals partake in take place under informed consent? Examples: Sex of any kind, assisted suicide, BDSM-related behaviors (whipping, paddling, etc.), sexual relationships (not the sex itself) of all stripes (polyamorous/polyfidelity, open relationships, (non-agreed upon) extra-marital, sexual co-habiting), prostitution, boxing.
3. Does this behavior violate the Harm Principle? This is used for all behaviors in which informed consent isn't possible or feasible (passive, "tuned in" behaviors, etc.). Examples: public nudity and sex (ads, television, web sites, movies, or simply individuals partaking in such), singing, dancing, wearing loud/provocative clothes, having parades.
With these points of comparison, we'd have a single, simple baseline of behavioral governance, which would go a long way towards simplifying the determination of the permissibility of any particular human behavior. Things that are more complex would of course go for more debate, but for many (perhaps even most), we'd have a much easier time of it. Also with this, singling out particular types of behaviors often becomes pointless, since it already would fall under the purview of one of the above. Examples: homosexual sex (of any kind), group sex, anal sex, oral sex. Any particular ideology that attempts to opine on these behaviors would be excluded from the debate, since these behaviors would already pass at No. 2 - meriting no further debate. "Gateway" arguments are defeated without further debate as well. Example: Rick Santorum makes the argument that "making homosexual sex legal is only the first step towards allowing things like bestiality". This argument couldn't be made in a congressional debate; as shown by number 2, any consensual behavior which is between two or more individuals is protected. Animals cannot provide informed consent, ergo, this argument is baseless.
Human Attributes
Now that we've discussed behaviors, we move on to a particular kind of behavior: speech. In many places, limits on free speech have been imposed to protect certain groups from defamation. I fundamentally disagree with these limits; if someone wishes to foolishly deny the Holocaust, or wants to say that people who wear black are horrible people, that's their prerogative. Although we may think they're uninformed or stupid, it should be their right. That said, in a world where hate speech laws exist, we can come up with a better standard about how to formulate and apply them. For that, we'll turn to classifying human attributes.
Inherent: these qualities are those that exist without any choice. Examples: skin color, facial features, gender, genetic makeup and heritage, height, natural hair color.
Acquired: Religion, culture, political party, (dyed) hair color, favorite artists, whether or not you choose to breed.
Undetermined: sexual identity, fetishes
Special: Language, nationality
Which of the above would be protected? Without question, inherent qualities would be. Not only do you not have a choice, but when it comes to functioning in a modern society, these things should be considered (and really are) irrelevant and should be excluded from any considerations for fitness for anything.
Acquired qualities would definitely not be. If it's human created, and by choice, it's open to criticism, mockery, re-use in art, anything.
Undetermined qualities would simply be measured against the "3 rules" at the beginning; for any that I can think of, they would be protected.
Special qualities are qualities which are not born with, but you still have little choice in the matter about learning or being. These would probably be open to debate, but I'd lean on not protecting language (since it has no inherent "value", but is simply a tool). I'm not sure about nationality, but it's probably largely irrelevant; when people criticize it, they typically are referring to something more specific (like heritage (inherent, so protected) or perceived dominant culture (acquired, so not protected)). So applying laws there would come down to intent.
Realpolitik
Finally, we get to having to handle arguments about "harm to society". For behaviors that could reasonably be construed (and proved) as having truly tangible detrimental effects to a society, regulatory oversight would be necessary. Note that "tangible, detrimental effects" refers only to ones that affect the functioning of society, not whether it upsets someone (or a lot of someones).
Example: the alleged effects of serious drug abuse (not use) on the economy. First, we'd assume that all drugs are legal and regulated by the government. Second, we'd assume that only official distribution sources are allowed; non-official ones would be illegal and would be rightly closed down and its owners punished. Assuming that a link could be proved between widespread drug use and serious economic decline, the maximum amount of any particular (or all drugs) that could be distributed to an individual would be reduced. Additionally, indemnification for the state would be required when purchasing/receiving; basically, if you become addicted and refuse rehabilitation, you're on you're own. Of course, extensive education on the effects of the drugs you choose would be provided, along with "effects competency tests" to determine whether you're capable of handling them (physically and psychologically).
This concludes part I of this series. It has described a unified system for determining how to govern behaviors, along with ways to approach hate speech legislation. The next part will attempt to deal with the problems surrounding protecting human rights, particularly the powerlessness of the UN and how it could be fixed.
A quick aside
What would be examples of behaviors that would be up for discussion? Abortion is one. "Smoking-based" drug use is another. For the first, the simple argument is that the unborn are simply not people. They're fetuses and thus undeserving of human rights protections; I'm fundamentally in agreement with this idea. As for smoking (any kind of drug), I'd probably lean on the idea that it'd only be protected where "a reasonable expectation that others wouldn't be exposed to the smoke". All other methods (and types) of drug use would be protected, as they meet the criterion in 1).
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