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Rieff, Philip; And OthersMoral Choices in Contemporary Society: NewspaperArticles for th'e Sixth Course by Newspaper.California Univ., San Diego. Univ. Extension.National Endowment for the Humanities (NFAH),Washington, D.C.7749p.-; For related documents, see SO 009 861-864Publisher's Inc., 243 12th Street, Drawer P, Del Mar,California 92014 ($2..50 paperbound)

MF-$0.83 Plus Postage. HC Hot Available from EDRS.Abortions; Adult Education; AutoinstructionalPrograms; Business; ContentNReading; Crime;Educational Progra; *Essays; Family Life; HigherEducation; Laws; *Moral Issues; *Newspapers; OlderAdults; Politics; Racism; Scientific Enterprise;Sexuality; *Social Problems; Values

Sixteen articles written for publication innewspapers discuss moral issues in contemporary society. The articlesform.the basis of a college-level course by newspaper which alsoincludes a book of primary source readings, study guide, and sourcebook. The course can be taken independently by individuals or in astructured class setting. The articles, or "lectures," are writtenmainly by university professors and researchers.,Content covers 16areas of problems of living, including sexual conduct, ciime andpunishment, business and political ethics, work, and science andtechnology. The articles identify the issues and present varyingperspectives on them; the supplementary materials contain relevantreadings, discussion questions, and other instructional resources.Each article is preceded by a paragraph which gives backgroundinformation about the author,/ (AV)

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MORAL CHOICESIN CONTEMPORARY SOCIETY

Newspaper Articles for the Sixth Course by Newspaper

AuthorsPhilip RieffJean Lipman-BlumenChristopher LaschDaniel CallahanRobert W. TuckerLon L. FullerErnest van den HaagJohn P. SiskHans JonasMartin E. MartyKenneth B. Clark

Courses by Newspaperis a project of

University ExtensionUniversity of California, San Diego

,Funded bythe National Endowment for thelHumanities

Distributed byUnited Press International

2

Publisher's

Academic CoordinatorPI 111.11' RIEFF. Benjamin Franklin Professor

of Sociology. I. lniversity of _Pennsylvania

National BoardDAVE) P. GARDNER. Chair: President.

t lniversity of tJtaii

JESSIE BERNARD, Resealkh Scholar,Pennsylvania .State University

HERBERT BRUCKER. Editor (retired).Ilortford Courant

CARL N. DEGLER. Professor of Iiistory.Stanford University

RALPH ELLISON. Author

WIIAJAM II. COETZMANN, Professor ofAmerican Studies. University of Texas

FREDERICK A. OLAFSON, Professor ofPhilosophy. thiiversity of California,San Diego

PAUL D. SALTMAN. Vicib-Chancellor forAcademic Affairs and Professor ofBiology, University of California.San Diego

Faculty Committee: UCSDPAUL 0. SALTMAN. Chair

ROBERT C. ELLIOTT. Professor of EnglishLiterature

WALTER H. MUNK, Associate Director,Institute of Geophysics and PlanetaryPhysics, Scripps Institution ofOceanography .

ZENO liENDLER. Professor of Philosophy

r JACQUELINE WISEMAN, Professor ofSociology

Project DirectorGEORGE A. COLBURN, t iniversity of

California. San Diego

Editorial DirectorJANE L. SCHE1BER, University of California.

San Diego

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Copyright C 1976. 1977 by the Regents of the University of California. All rights reserved.Printed in the United States of America'.

PREFACEThe sixteen articles in this booklet examine the often controversial

moral dilemmas surrounding such issues as abortion, sexual conduct.crime and punishment. business and political ethics, science, technol-ogy, work, and race: the perennial problems of how we are to live.

These articles were originally written for the sixth Course by News-paper, MORAL CHOICES IN CONTEMPORARY SOCIETY. oflOred forthe first time in the winter/spring of 1977. Philip Rieff. the BenjaminFranklin Professor of Sociology at the I Iniversity of Pennsylvania.coordinated this course.

Courses by Newspaper. a national program originated and adminis-tered by University Extension, University of Califohiia, San Diego.develops college-level courses that are offered to the public, by hurl-dreds of cooperating newspapers and colleges and universitiesthroughout the country.

A series of weekly newspaper articles, written by a prominent "fac-ulty." comprises the "lectures" for each course. A supplementarybook of readings, a study guide, and a udio-caSsettes are olsb available .to interested readers, with a source book available to community dis-cussion leaders and inWuctors. Colleges within the circulation areaof participating papers offer the opportunity to meet with local profes-sors and to earn college credit.

In those areas where a newspaper is interested in running the seriesand no local academic institution wishes to participate, credit, ar-rangements can be made with the DiviSion of Independent Study',University of California, Berkeley.

The first Course by Newspaper, AMERICA AND THE. FUTURE OFMAN, was offered in the fall of 1973, with funding from the NationalEndowment for the Humanities and a supplementary_grant from theExxon Education Foundation. Subsequent courses have included INSEARCH OF THE AMERICAN DREAM, two segMents of THE AMERI-CAN ISSUES FORUM, and.00EANS: OUR CONTINUING FRONTIER.To date, almost 600 newspapers and more than 300, colleges havepresented the courses. Approximately 15 million people read the arti-cles for each course. More th-an 18,000 persons have earned creditthrough Courses by Newspaper.

For the past two years. Courses by Newspaper has been fully fundedby the National Endowment.fer the Humanities, a federal agencycreated in 1965 to support education, research, and public activity inthe humanities. We gratefully acknowledge their supPort for thisunique educational program.

We also wish to thank United Press International, which cooperatedin distributing the articles to participating newspapers across thecountry.

The views presented in these articles, however, are those of theauthors only and do not necessarily reflect the views of the I niversityof California or of the funding and distributing agencies.

CQNTENTS

I. Philip RieffThe Nature of Morality 3

II. Jean Lipman-BlumenThe Dilemmas of Sex 6

III. Christopher LaschThe Family and Morality 9

IV. Daniel CallahanAbortion: A Clash of Symbols 12

---V. Daniel Callahan

Aging and the Aged 14

VI. Robert W. TuckerPolitics: The Domestic Struggle for Power 17

VII. Robert W. TuckerPolitics: The International Struggle for n,ver 19

VIII. Lon FullerLaw and Morality 22

0

IX. Ernest van den HaagThe Effectiveness of Punishment 25

X. John P. SiskPornography and Obscenity 28

Xl. Hans JonasScience and Morals: Freedom oflnquiryand the Public Interest 31

XII. Hans JonasScience and Morals: The Ethics of Biomedical Research ..... 33

XIII. Martin E. MartyThe Morality of Work and Play 36

XIV. Martin E. MartyThe Morality of Business 38

XV. Kenneth B. ClarkMoral Duplicity and American Racism 41

XVI. Philip RieffMoral Education 43

6

ABOUT THE AUTHOR

Philip Rieff

THE NATURE OF MORALITY

PHILIP RIEFF is the BenjaminFranklin Professor of Sociology at theUniversity of Pennsylvania. He hastaught at Harvard and Biandeis Uni-versities and at the University ofChicago, and hi is Quondam Fellow ofAll Souls College, Oxford University.Editor of a ten-volume collection of the

-papers of Sigmund Freud and a found-ing editor of Daedalus, he is also theauthor of Freud, the Mind of the Moralistand Fellow Teachers.

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WHA T IS MORAl. IN TODA Y'S CHA NG ING WOHLD.

I: THE NATURE OF MORALITYby Philip Rieff

Those of us who are in middle life have seen themoral world around us appear to turn upside down.

You name it sex, politics, work, family, abortion,crime, law, drugs, race. Whatever the subject, thingsseem to be topsy-turvy.

Did our ancestors have it all wrong at least forour time? Is there no real good and evil?

Some say that "ideals" are meant to be unattainable,like a moral alarm clock that we deliberately set muchtoo early. All of us, then, could cheat a little and grab,say, an extra hour's sleep.

8

Still others say that in tile second half of the twen-tieth century our old moral clocks have lost theirhands, and we arirfree at last to make up our ownversion of what time it really is.

To answer these claims, consider how moral ordershave worked from the oldest societies known to thevery near present.

In every culture, guides are chosen to help Men con-duct themselves through those passages from onecrisis of choice to another that constitute the experi-ence of/living.

NARROWING THE CHOICESA culture in fact survives only "as far as the members

of a culture learn how to narrow the range of choicesotherwise open to them. Safely inside their culturemore precisely, the culture safely inside them mem-bers of it are disposed to enact only certain pos-sibilities of behavior while refusing even to dream ofot hers.

It is culture, deeply installed as authority, that gen-erates depth of character; and character must involvethe capacity-to say no. A man can only resist the mul-tiplicity of experience if his character is anchoreddeeply enough by certain values to -resist shuttlingendlessly among all.

These values forbid certain actions and encourageotliers: and they express those significant inhibitionsthat characterize us all alike in a culture. It is by virtueof these values and -their shared character that mem-bers of the same culture expect each other to behave incertain ways and not in others.

To preventthe expression of everything: that is theirreducible function of culture. By-the creation of op-posing values of ideals,- olmilitant truths a seal isfastened upon the terrific capacity of man to expresseverything.

Even now, with all their experience of defaultamong candidates for the office, ordinary men stillcrave guides for their-conduct. And not merely guid-ing principles. Abstractions will neVer do. Vatueshave to be exemplified-iii-order to be taught: or, atleast, vital examples must be pointed to and a sense of

,-indebtedness (which is the same as guilt) encouragedtoward the imitation of these examples.

CULTURE IN CRISISOur culture is in crisis today. precisely because no

creed, no symbol, no militant truth, is installed deeplyenough now to help men constrain their capacity forexpressing everything. Internalized values from anearlier period in our moral history no longer holdgood. Western men are sick precisely of those interiorideals which have shaped their characters. Accord-ingly, they feel they have no choice except to try tobecome free characters. And to believe thnt man is thesupreme being for man.

What characterizes modernity, I think, is just thisidea that men need not submit to any power higheror lower other than their own. It is in this sense thatmodern men really believe they are becoming gods.

ANTI-GODSThis belief is the exact reverse of the truth: Modern

men are becoming anti-gods. Because, as I have saidearlier, the terms in which our god was conceived canexist only so long as they limit the capacity of man toexpress.everything, our old god was never so uninhib-ited as a young man. Our god was bound, after all, bythe terms of various covenants.

In the next culture, theee are to be no priests, noteven secular ones. We are not to be guided rather,entertainment, stimulation, liberation from Ille con-straints drawn round us by the narrowing guidelinesbecome the functional equivalents of guidance.

To emphasize the harmlessness of the new manthe individualist freed from cultural inhibitions

4

Oscar Wilde in one of his greatest essays compareshim to both the artist and the child:

It will be a marvellous thing the true personalityof man-i When we see it. It wifi grow naturally and.simply, flower-like, or as a tree grows. It will not beat discord. It will never argue or dispute ... It willknow everything. It will have wisdom. Its value willnot he measured by material things ... It will not bealways meddling with others, or asking them to belike itself. It will love them because they will bedifferent. .And yet while it will "not meddle withothers, it will help all, as a beautiful thing helps us,by being what it is. The personality of man will hevery wonderful. It will be as wonderful as the,per-sonality Of a child.Nothing here hints how human personality 'can

stabilize itself except by installing ideals in_oppositionto one another. What the author is saying- is reallythat if nothing is prohibited, then there will be notransgressions.

But in point of psychiatric and historical fact, it isNO, rather than YES, upon which all culture, andinner development of character, depends. Ambiva-lence will not, I think, be eliminated: it can only becontrolled and exploited. Ideal self-concepts, militanttruths are modes of control. Character is the restrictive--shaping of possibility. What Wilde called "personal-ity" represents a dissolution of restrictive shapings. Insuch freedom, grown men would act less like cherubicchildren than like demons, for they would disrupt therestrictive order of character and social life. .

.'DEMONIC TENDENCYOne sign of thiS demonic tendency is the currency of

two old words: Why not?The modern German writer Hermann Broth gave us

some short sample questions 1y which any of us cantell the moral time:

Why not burn a Jew's eyes out witli cigarettes?Why not tell lies at will?Why not break contracts?Why not eat human flesh?"Why not?" is the most terrible simplification of all

moral dilemmas. It is a question that makes allanswers equal. Good questions and true doubts alwayshave their honored place within the moral truths thatgenerate them and to which they owe their worth.

Whether the articles in this series raise good ques-tions and true doubts will be a matter of reader reac-tion as much moral, I think, as intellectual. This arti-cle is the first of sixteen on contemporary moral issues.Each author has written from a special competence ina field of study as a lawyer, historian, philosopher,sociologist, literary critic, political scientist.

Scholars that they are, they have not attempted towrite, as I read them, dispassionately. Moral issuesare ess,entially contested issues. One dispassionatestance in the play of minds and-wills, perhaps the mostdispassionate, is that of "Why not."

As I have tried to show in this introductory article,those who advocate the dispassionate stance aresurely the contemporary leaders in the moral contest.But morality cannot be reduced to a matter of "lifestyle" and personal taste, and I hope these articles willhelp to clar4 the dimensions of mcirality which wemiss when we try to think of it in such terms.

9

ABOUT THE AUTHOR

Jean Lipman-Blumen

THE DILEMMAS OF SEX

-'11741.

it3t

JEAN LIPMAN-BLUMEN is a seniorresearch associate and director of theWomen's Research Program at the Na-tional Institute of Education, a divisionof the Department of Health, Educationand Welfare. She was previously onthe, faculties of the University ofCalifornia, Santa Cruz, and HarvardUniversity, and she was a research as-sociate at the Radcliffe Institute, whereshe directed a project on Life Plans ofMarried Women. She has appeared onradio and television programs aboutwomen's roles, and she is the author ofmore than a dozen articles on the sub-ject. This article, prepared for Coursesby Newspaper, was written in her pri-vate capacity; no official support orendorsement by the National Instituteof Education or HEW is intended orshould be inferred.

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6

Sexual union expresses the duality of human sepa-rateness and connectedness. It represents strivingafter confirmation-of our uniqueness as an individual,-at the same time that it reaffirMs- our loss .of self in alarger cosmic process. This is true with regard both tothe immediate sexual act with our partners and to thenew life that may result from such a union.

Sexual relationships, the physical epilome of inti-macy, inevitably breed responsibility, whether or motwe choose to recognize it. Sexuality creates responsi-bility because our sense of ourselveS- as- sexualbeingsparticularly sexually acceptable, attractive,and adequate beingsis central to our human identi-ty, And it is the exposure of our essential being, ourcore meaning, that creates responsibility in ourselvesand in the individuals who would accept Our offer ofintimacy,

Sexual relationships involve exposing our most vul-nerable selves to one another, Protecting the otherperson's vulnerable self from harm, humiliation, rejec-tion, and embarrassment is a serious responsibilityTThe degree to which we do this is one measure of ourown humanity.

While we may be mature in years, sexual maturity isa long; complicated process not systematically linkedto physiological and chronological developMent. Infact, in modern societies, the individual's sexual self isthe least and last explicitly developed dimension of self.

Unlike the social.and intellectual dimensions of theself, which are inVolved in human interaction andgrowth hem the day of birth, the sexual self in modernsociety usually is protetted from deliberate and con-scious development and experience at least untiladolescence. Perhaps our awareness of the disparitybetween the childlike state of our sexual being andexperience and the sophistication of our 'intellectual,

'social, even political selves complicates the problem.

VULNERABILITYNovelists from F. Scott Fitzgerald to J,D. Salinger

have portrayed the anxiety of the young man's firstsexual encounter. It is a picture that arouses. sym-pathy, horror, and humor because we recognize his"brand newness," his raw vulnerability. It is this veryvulnerabilityboth in women and menthat createSresponsibility, -

Often, we are so concerned with self-protection thatwe fail to recognize the other person's equally greatneed, Opening oneself to another .person, revealing anaspect of oneself that is at the center of one's identity,is an act fraught with both danger and great potential,There ic tbe danger of being diminished by rejection,the potential of being enhanced by confirmation andUnion. The possibility of self-reduction by treatingothers without responsibility adds still another level ofintricacy to sexual relatignships.

The responsibility we assume for both the other per-son and ourselves can act as a heavy burden or as asource of great joy, growth, and awareOess, dependingin part on'the motivation behind sexual relationships.The feminists have been quick to see that the' moralissue at the heart of sexual intimacy is not if hut whywe establish sexual relationships.

MOTIVES FOR SEXUAL RELATIONSHIPSDo we seek sexual relationships simPly because we

/ 7.

perceive the Person as a "sex object," someone who"turns us on"? Does the relationship mean the ,crea-lion of "convenience sex," not unrelated to "conveni-ence foods" in an increasingly plastic society? Doesthe relationship signify a conquest, a power or ego"trip"?

Do we enter sexual relationships because refusingmay label us as unsophisticated, un liberated, re-pressed, unmanly, unwomanly? Or do weengage insexual relationships because we fear refusalwill jeop-ardize other valued aspects of the relationship? Do wedo so because we sense that denial will damage theother person's sense of sell?

Do we enter such relationships to transform our-selves and othyrs? Do we seek sexual union to createnew life or instill vitility in old lives? Do_we enter

'Isexual relationships in, order to give or to take or toestablish a balance between the two?

Very often the emotional and intellectual intimacythat we seek with another person is absent, and weattempt to create it artificially through sexual inti-macy. But when sexual intimacy stands alone, unin-tegra ted with the development of knowing, caring,

. and feeling, we face the "depersonalization," the ano-nymity of sex.

SEX OBJECTThe new "buzzwords""depersonalization" and

"sex object"bespeak our concern with protectingour sense of self. When our sexual identity is reducedto sexual functioning, replaceable bodily parts, we ex-perience the anomie, the existential isolation thattransforms sexual relationships intoa parmly ofhuman existence.

Only the responsibility that we take for protectingone another's unique individuality and _self in sexualrelationships insures us against the tragic realizationthat our most central self is simply "another body,"not a special unique being to another person.

Trust is-an important component of responsibility..When we enter sexual relationships before we 'haveexposed the nonsexual aspects of ourselves, it is im-possible to guarantee responsibility for protecting thisunknown, unique individuality of another person.And when one individual cannot/hold out the promiseof responsibility, the other individual cannot hold outthe expectation of trust.

Yet, getting to know another person takes time.Marathon self-revelation is Tio_substitute for seeing anindividual's personality reveal itself under differentcircumstances over time. When we telescope the in-terpersonal aspect of knowing another person -andenter a sexual -relationship on the basis of "instantunderstanding," we Cannot guarantee that we willtruly like, respect, and be responsible for this indi-vidual whom we shall know differently as time passes.The disjuncture between the physical intimacy and theinterpersonal anonymity takes its toll in lonelinessand despair,

The relationship between responsibility and inti-macy is obviously very complex. The complexityarises from the interweaving of responsibility, trust.and intimacy, uniqueness and.commonality, isolationand communion, self and other. The moral dilemmasposed by this relationship cannot be reduced or un-derstood by separating the inseparable tz_arts.

ABOUT THE AUTHOR

Christopher Lasch

THE FAMILY AND MORALITY

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CHRISTOPHER LASCH is professor ofhistory at the University of Rochester,where he joined the faculty in 1970. Hepreviously taught at NorthwesternUniversity and the University of Iowa.H is books include The New Radicalism inAmerica, The Agony of the American Left,and ThetWorld of Nations: Reflections onAmerican History, Politics, and Culture.He is currently working on a majorsociological and historical study of themodern family, Haven in a Heartless

1World.

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FIX NOIN. UNA kriflIA':1

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In the course of bringing Filene's bargain-basement"culture" to the consumers of it, the advertising indus-try, the school, and the mental health'and welfare ser-vices h ive taken over many of the socializing func-tions of the home. The ones that remain have beenplaced under the direction of modern science andtechnology.

While glorifying domestic life as the last haven ofintimacy, these agencies of mass tuition have propa-gated the view that'the family cannot provide for itsown needs without outside assistance.

The advertising industry insists that the health andsafety of the young, the satisfaction of their daily nutri-tional requirements, their ertiotional and intellectualdevelopment, and their ability to compete with theirpeers for popularity and success all depend 'on con-sumption of vitamins, Band-Aids, cavity-preventingtoothpaste, cereals, mouthwashes, and laxatives.

"Domestic science" urges the housewife and motherto systematize housekeeping and to give up the rule-of-thumb procedures of earlier generations. Modernmedicine orders the abandonment of home remedies.The mental health movement teaches that maternal"instinct" is not to be trusted in childrearing.

Even the sex instinct has come to be surrounded by agrowing body of scientific analysis' and commentary,according to which sexual "hilfillment" depends onstudy, technique, discipline, control.

THE NEW SOCIAL WELFAREThe diffusion of the new ideology of social welfare

and "civilized" consumption has had the effect of aself-fulfilling prophecy.

By convincbig the housewife, and finally even herhusband as well, to rely on outside technology and theadvice of outside experts, the apparatus of masstuitionthe successor to the church in our secularizedsocietyhas ululermined the family's capacity to pro-vide for its 1...The agencies of mass socialization havethereby juudied the Continuing expansion 'of health.education, and welfitre services.

Yet rising rates of crime, juvenile delinquency,suicide, and mental breakdown belatedly suggest tomany experts, even to many welfitre workers, that wel-fare agencies furnish a poor substitute for the family.Dissatisfaction 'with the results of socialized welfilreand the growing expense of maintaining it now.prompt efforts to shift health and welfare functionsback to the home.

THE DEMISE OF FAMILY AUTHORITYIt is too late, however, to call for a revival of the

patriarchal family or even of the less authoritarianfamily that replaced it. The socialization of reproduc-tion has fatally weakened not only the father's author-ity but that of the mother as well.

Instead of imposing their tiwn standards of rightand wrong, now thoroughly confused, parents influ-ended by psychiatry and the doctrines of progressiveeducation seek to understand the "needs" of the youngand to avoid painful confrontations. Instead of guid-ing the child, the older generation struggles to "keepup with the kids," to master their incomprehensiblejargon, and even to imitate their dress and manners inthe hope of preserving a youthful appearance andoutlook.

Under these conditions, children often grow upwithout forming strong identifications with tbeir par-ents. Yet it was precisely these identifications thatformerly provided the psychological basis of con-science or superegothat element of the psyche whichinternalizes social prohibitions and makes submissionto them a moral duty. Lacking an internalized sense ofduty, children become "other-directed" adults, moreconcerned with their own pleasure and the approvalof others than with leaving their mark on the world.

The ease with which children escape emotional en-tanglements 'with the older generation leaves theMwith a feeling not of liberation but of inner emptiness.Young people today often reproach their parents withindifference or neglect, and many of them seekwarmth and security in submission to spiritual heal-ers, gurus, and prophets of political or psychictransformation..

Permissive styles of childrearing, instead of en-couraging self-reliance and autonomy, as might havebeen expected, appear instead to intensify the appetitefor dependence.

SUPERSTATEThe only alternative to the superego, it has been

said, is.the superstate. Formerly, the absorption of pa-rental values enabled the young to overcome child-hood dependency and to become morally autonomous.

Today, the wish for dependence persists into laterlife, laying the psychological foundations .of newforms of authoritarianism.

At first glance, the decline of conscience might ap-pear to make it more difficult for the authorities toimpose themselves on the rest of the population. Notonly parents, but all those who wield establishedauthorityteachers, magistrates, priest have suf--fered a loss of "credibility."

Unable to inspire loyalty or even to commandobedience, they therefore attempt to impose their will \through psychological manipulation. Government be-wines the art of personnel management, which treatssocial unrest as a kind of sickness, curable by means oftherapeutic intervention.

Yet, in many ways the new forms of au-thoritarianism and social control work more effec-tively than the old ones. As religion gives way to thenew antireligion of mental health, authority identifiesitself not with.what ought to be but with what actuallyis, not .with principles but with reality. The individu-al's conduct is gcverned less by his superego than byhis conception of reality; resistance to the status quobecomes not "unprincipled," but "unrealistic."

Political authority no longer rests on the family,'which formerly mediated between the state and theindividual. Indeed, the state has accommodated itselfso well to the wje akening of parental authority thatefforts to strengthen the family are likely to be per-ceived as threats to political stability.

Through the proliferating apparatus of masssocialization, the state now controls the individualmore effectively than it controlled him through ap-peals to his conscience. Even though the new methodsof social control might exact a mounting economic,social, and psychological price, those methods will bediscarded only when the price threatens to beceme

D altogether unbearable.

1 0

4BOUT THE AUTHOR

Daniel Callahan'

ABORTION

andAGING AND THE AGED

DANIEL CALLAHAN is Director of theInstitute of Society, Ethics and the LifeSciences, which he founded in 1969. Hepreviously was a Staff Associate of ThePopulation Council, and from 1961-1969he was Executive,Editor of Com-monweal magazine. In addition, he hasserved as Visiting Ptofessor at severalmajor universities and as a consultanton Medical Ethics tO the Judicial Coun-cil of the Americr Medical Associ-ation. The recip, nt of the ThomasMore Medal for Abortion: Law, Choiceand Morality, he bias written and editedmany other books and articles, in-cluding The Tyr/army of Survival andEthics and Population Limitation. In1974, Time magazine selected him asone of the 200 outstanding young lead-ers in the United States.

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IV: ABORTION: A CLASHOF SYMBOLS

by DANIEL CALLAHAN

Even in a, nation well familiar with acrimonious de-bate, the struggle over abortion takes a special place. Itintimidates politicians, and divides the churches. It of-ten sets husbands and wives at odds, arid remains anopen source of dispute among physicians, who are as

12

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divided as the rest of society.This debate is not peculiar to our time and place.

Abortion has been a subject of fierce argument for atleast 3,000 years. It was capable of ,dividing primitivetribes and families and has, in our centory, seen a

17

wholly bewildering pattern of changes in the law. If thetrend in many Western countries in recent years hasbeen toward a liberalization of abortion laws, just theopposite has been true in Eastern Europe, where it is

/harder now to get an abortion than a decade ago.It is said that abortion is a "religious" question--but

churches take moral stands on any other number ofmoral and social issues without those issues being la-belled religious.

It is said that abortion is a "medical problem"though the evidence is overwhelming that most womenseek abortion for personal and social, not medical, rea-sons. Abortion is euphemistically called "pregnancytermination"though it is clear that a pregnancy is onlyso terminated by killing a fetus (feticide).

It is said that, if abortion is accepted, then infanticideand the killing of the elderly are certain to followthough this has not happened in any modern countrythat in recent decades has liberalized its abortion laws.

It is said that restrictive abortion laws are imposed byrepressive malesthough every survey ever conducted

this country indicates women are more opposed toabortion than men.

It is said that abortion is an offense against the sanc-tity of lifebut opponents of abortion are not among

\ the more visible marchers against war and capitalpunishment.\ I mention all of these contentions only to point out

ttiat it is an emotionally-charged issue, in which neitherthose favorable to legalized abortion nor those opposedhave a monopoly on dubious arguments.

THE MORAL DIMENSIONIs it possible, in the midst of such strife and passion,

to get some moral grasp on just what is at stake?The key problem is to decide how and in what way it

is a moral problem. For those who hold that the fetus isnothing but "tissue," no more important than a hang-nail, then of course there is no moral issue at all; abor-tion becomes, one more item of elective surgery. Forthose who hold that women have no rights whateverover against the right-to-life of a fetus, then that posi-tion equally dissolves any moral dilemmas.

But even if people talk that way in public, I hive metvery few who are able to be so clear-cut in private. Howcould they be? Whatever one's theory of the fetus, it isundeniable that, even after 7-8 weeks, it looks suspi-ciously familiar.

It looks, well, human. Maybe it should not be called aperson, or a human beingbut there il is, and it appearsmore than a trace like the rest of us.'

Yet what does that tell us of moral significance? For itis argued that the fetus is too little developed to claimthe status of a person, and much too little developed tosay that its interests and welfare must always overridethose of a woman who wants an abortion. That is not aneasy view to dismiss.

WHAT IS A PERSON?There is no agreement whatever in this country about

when human life, much less personhood, begins. It isnot just that the public is divided. So are philosophers,theologians and scientists. If we mean by "humanbeing" or "person" only that which is geneticallyunique, then the fetus would obviously qualify. If wemean something morean ability to relate to other

1 8 13

people, or to reason, for examplethen the fetus wouldclearly not qualify.

Or we may choose to look for some mid-point in thedevelopment of the fetus, a dividing line which wouldavoid the dubious result of declaring even a newly-fer-tilized egg a person, as well as the equally\ dubious re-sult of failing to declare a fetus a person until shortlybefore or even after birth. "Viability," which is nor-mally thought of as possible after 24 weeks of gestation,is one of those attractive dividing lines. So at least theU.S. Supreme Court decided in its famous 1973 abortiondecision.

The trouble with trying to find such a line, however,is that it js very difficult to explain just why that line,whatever it is, rather than some other line. Why not usethe'first sign of brain activity (which occurs as early asthe 7th week of gestation)? Or the beginning of a heartbeat?

ALLOCATING RIGHTSThese are serious puzzles. They become all the more

troubling if we look at the broader problem of decidinghow we should allocate rights and to whom. Should wein/the first place even try to determine who is a personand who is not? Blacks, one recalls, were solemnly de-clared non-persons as late as the 17th century. In ourown times, the Nazis had no hesitation whatever aboutkilling those they thought unworthy of legal protection.

In short, if we even begin trying to decide who shouldand should not count as a person, we may be setting thestage-for any manner of moral abomination.

Still, one cannot ignore the claims of those womenwho feel they should have the right, in the case of thefetus only, to decide its fate. Even if it is a hazardousmoral enterprise to allow one group of people (whites,women) to have total power over another group (blacks,fetuses), it may also be hazardous to deprive individ-uals of those free choices which may decisively deter-mine their basic he,alth and well-being. (This is ex-actly the way many women frame their demand forabortion.) ,

The great strength of the claim, however, that womenshould have the right to choose iswhether we like it ornotthat the status of the fetus is morally uncertain. Itmay have rights, it may not; who can know with anycertainty? For_ine personally, that 'uncertainly is justenough to tiP the scale in favor of the woman whowants an abortion.

It is a choice, though, with which I at least live uneas-ily. Women have been oppressed through the ages, ingreat part by being given no choice about their ownbodies. As a symbol of a final liberation from the bond-age of a fixed biological destiny, the right to abortion ispowerful.

Yet what a disturbing symbol. For it is a symbol offreedom which can only be realized by crudely affirm-ing still another symbolthe strong killing the weak.

Even if a futus is not human, or not a person, it is thebeginning of all individual life. In killing a fetus, we killpossibility and we kill life. It may be that the world is soinherently rotten and irrational that we must chooseone good (freedom) at the expense of another (life).

Yet I wish I could dismiss a nagging thought. Thefault may not lie in the way the world is. It may lie inourselves, ever prone to elevate our private self-inter,-ests to the status of high moral good.

t.

,Sk .1454

CONFLICTING WAGES OF OLD AGE. Ohl man Oiollt! With his thOlighls Und his poverty, (mil nuuNtro Arthur Findh.T at thr ago ofryheorsing vaang nuanhers tht. Boston Bonet Compony.

V: AGING AND THE AGED

4, Daniel Callahan

To one who recently reached the advanced age of'forty-six, the rapidly approaching prospect of old ageis both entrancing and terrorizing.

My children will be grown, my life will once againhe my own. That is entrancing.

But I am not altogether reassured by some of theelderly people I see around me, who spend a good dealof their extra leisure visiting hospitals, going to thefunerals of old friends, and restlessly looking forsomething to do with idle time.

That's if one is doing relatively well.Many of the elderly are in nursing homes, those

14

cunning institutions created to make certain that theelderly are not under foot around the house. The pros-pect that I might end my days in one of those placesstaring at walls or ever-blaring television sets ter-rifies me, but only slightly more than the prospect ofilging itself.

CONFLICTING IMAGESf am also puzzled.History has delivered at least two conflicting images

of old age. There is the image of lost youth, decliningpower, creeping decay, and a final lonely passing on.

There is also the image of a crowning culmination oflife, respect and honor, the loving circle of one'ssrown children with their children, and a peacefuldeath enhanced by the knowledge that a full andworthy life has been lived. No doubt both images aretrue. Yet no one has satisfactorily explained to me whysome of the aging realize one image and some theother.

One thing now seems certain, however. Slowly butsurely we are almost guaranteeing that old age will beif not outright misery (which will be the lot of many)then loneliness, poverty, and isolation.

Modern medicine must share part of the blame. Ithas become increasingly ingenious at keeping peoplealive, but has proven singularly unablesto do anythingabout the kinds of lives people live.

If the gift of life is another ten years in a nursinghome, is that pure gain? Is life on imachine a benefit?

Or consider the job market.Perhaps it is reasonable that the elderly should be

forced into retirement at a certain age and that youthshould be given their chance to take over. But that is avery different matter from the other message our cul-ture also delivers. If one is not a "productive" (that is,a money-making) member of society, then one is apure liability.

"A BURDEN ON MY CHILDREN"Those familiar complaints, however, do not get to

the bottom of the matter. The problem of age for me issummed up in a phrase I have heard people, includingthe elderly, utter ever since I was a child: "I don't wantto be a burden on my children."

What an understandable and yet, at the same time,strange thing to say. it is understandable because theprospect of helplessness and dependency is part of thefearful image of old age.

It is also very strange. Those same children uponwhom one does not want to become dependent are thevery ones who were for so long dependent upon theparents. If children need parents for eighteen or evennow twenty years for their life, their food, theirhousing, their education why should it seem sowrong for children to take up the burden of caring fortheir parents when the latter's time of need and de-pendency has come?

It seems a matter of simple justice and reciprocity, apoint well recognized by older cultures, which wouldhave found bizarre the notion that parents owe every-thing to children, but children owe nothing to parents.

THE MYTH OF SELF-SUFFICIENCY,The fact that the elderly themselves say they do not

want to be dependent upon their children does notremove the moral scandal.

The root of the evil is the equally strange notion thateveryone should be dependent upon himself alone. Itis a heady, but wholly false myth. No one is whollyself-dependent, not as a child, not as an adult, not asan old person.

That we should try to be our own person, have ourown ideas, and maintain some direction over our ownlives are very different matters from being self-sufficient. We need other people, not just becausesomeone has to grow the food we eat, build the houses

we live in, or print the books we read, but because wecannot even realize our human potential without thecompany and pleasure of others. What good is lan-guage if we have no one to talk with?

The irony of the insistent demand for self-sufficiency is now apparent. Economically, it is im-possible in fact for most people to achieve self-sufficiency. Having given up dependence upon familyand kin, we are now dependent upon Social Security,Medicare, or the capricious charity of the state.

Emotionally, it is hardly more possible to' be self-sufficient. I have seen all those independent souls sit-ting listlessly on park benches, desperate for someoneto talk with, eager to find someone who cares aboutthem. Who needs that kind of freedom?

We have sought the ideal of independence and givenup that of the mutual dependence of the old and theyoung. We are left, then, with no full, rich, and posi-tive vision of old age.

The result is neglect, isolation, and meaningless an-guish for millions of old people.

THREAT TO SURVIVALIf the prospect in the years ahead was only more of

the same, that would be sad enough. But the worst isstill before us.

The most obvious problem is that the proportion ofaged in the population will continue to grow, from 9percent at present to 11 percent within another twentyyears or so. There will, in particular, be a very largeincrease in the number of those seventy-five and over,a great proportion of whom will need considerablecare and attention if they are to survive.

But will they be allowed to survive? One price to bepaid for their survival will be an increasingly expen-sive investment of medical resources.

The array of medical miracles which can staveoff death is increasing, and so is the cost of thosemiracles.

Should the elderly have access to incredibly expen-sive open-heart surgery, or by-pasS operations, orround-the-clock medical care? Why, some are nowasking, should large sums be invested in research ondiseases which afflict primarily older people (cancer,heart disease) rather than on diseases which impairthe lives of younger people (genetic disease, forexample)?. These are pertinept and reasonable questions,

which would arise even if we did not already have aproblem about respecting the elderly.

Put in the context, however, of a growing indiffer-ence to the elderly, they become ominous.

If the elderly are already unwanted, but still at leastgrudgingly tolerated, the rising cost of medical careand technology may make the next step possible. Thatstep is, in/the name of medical scarcity, to begin deny-ing aid to the elderly.

Our culture is still not so grotesque that it would actin an openly brutal way. It always needs its moralexcuses.

Medical scarcity, rising costs, the needs of youththey may do very well as those excuses, and all themore cleverly because there is more than a grain oftruth in them.

They will not have to be invented. They will be therefor the taking.

15 2 0

ABOUT THE AUTHOR

Robert W. Tucker

PQLITICS: THE DOMESTICSTRUGGLE FOR POWER

andPOLITICS: THE INTERNATIONALSTRUGGLE FOR POWER^

2 1

ROBERT W. TUCKER is Professor ofPolitical Science at the Johns HopkinsUniversity in Baltimore and holds ajoint position with the School of Ad-vanced International Studies in Wash-ington, D.C. He is the author of variousarticles and books, including Nation OrEmpire? The, Debate over AmericanForeign Policy, The Radical Left andAmerican Foreign Policy, and A NewIsolationism: Threat or Promise?

16

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monopoly of coercionabove all, physical coercionover sticiety.

It is the means characteristic of the pursuit of powerthat raises the moral issue at its most fundamentallevel. The primary function of morality in politics maybe defined as the acceptance of- restraints on the modesof group conflict in societies where, because of a scar-city of goods (wealth, power, status, etc.), men cannotfulfill all of their desires. Thus one definition of moral-ity in-politics.deals primarily not in terms of the endsmen seek (however noble or base) but in terms of therestraints they observe in seeking those ends.

Admittedly, this manner of looking at the moral di-mension in politics cannot be reconciled with the revo-futionary for whom the ends of politics are everything,or very nearly so. It is at the polar extreme from theview expressed in Lenin's dictum: "Morality iS a func-tion of the struggle of the proletariat."

It is instead articulated by lames Madison in TheFederalist Papers (No. 51). "If men were angels," Madi-srm wrote, "no government would be.necessary. If an-gels were to govern men, neither external nor internalcontrols on government would be necessary. In framinga government which is to be administered by men overmen, the great difficulty lies in this: you must first en-able the government to control the governed; and in thenext place oblige it to control itself."

The first purpose of civil society is not to improvemen but to restrain them, and not least of all to restrainthe governors themselves.

A POLITICS OF RESTRAINTIf this view appears to many as too narrow, it is be-

cause -We commonly overlook the relative novelty of a"politics of-restraint." It is,-after all, only since the late

,seventeenth century that western societies began to ob-serve that most elementary of restraints in politics, theforebearance from killing or physically mistreatingthose who have lost out in the struggle for powei.

Throughout much of the world today this restraint,the beginning of constitutionalism,_is not 'yet observedwith any regullrity, Even in western societies it wasfully consolidated only quite recently. American his-tory affords notorious examples ofsroupsthe Indiansand the blacksexcluded in practice from a "politics ofrestraint" when daring to oppose, however peacefully,a status quo they fonnd unbearable.

Once the moral restraints of constitutionalism are ac-cepted, the relation betwee.n -morality and politics.varies greatly in modern societies. The American con-cern over morality in its domestic piilitical life has al-ways been something of a puzzle to Europeans. But thispreoccupation has been with us from the beginning.The Puritan impact on the early development of Ameri-can political institutions was a heavy one, and theAmerican Revolution was, as the late political scientistClinton Rdssiter has written, "preached fL.om the pul-pit." From Cotton Mather to Ralph Nader, moralistshave played a continuing and major role in Anwricanpolitical history.

PRIVATE GAIN AND ABUSE OF POWERWhat have been the sources of evil that moralists

have characteristically sought to root out of Americansociety? Clearly, the most visible and flagrant of all

18

forms of corruption has been the use of public officefor private gain. Venality remains today the chief sinin the eyes of many and is commonly so recognized bypoliticians.

During the Watergate crisis,. former President Nixonthought it was sufficient to turn back his accusers by in-sisting that he was not ."a crook" and that "nothing wasstolen" (statements which the release of his tax returnstended to cast doubt upon). In equating political im-morality with venality, Nixon was in tune with a viewwidely shared by Americans.

At the same time, there has been another and moreprofound.view that, while not ignoring the use of publicoffice for private gain, identifies immorality in politicsprimarily with the unlawful aggrandizement of power.It is the latter concept that fueled the cri.fsades againstthe trusts and the railroads in the 19th century and thatunderlies the contemporary attack upon corporate andgovernmental power by public interest groups. Theidentificatinn of corruption as the abuse of power wasalso at the heart of the case.brought against RichardNixon in the 1974 House impeachment proceedings.

Watergate illustrated, therefore, two quite differentforms of corruption in politics. The one, personal gain,is the more readily recognized by the public, and -it isthe one that codes of ethics adopted for public officialscommonly aim to eradicate. The other, aggrandizementof power, is less easily comprehendedas the 1974 im-peachment proceedings demonstrated. Yet it is the ag-grandizement of power that many political theoristshave seen as the supreme danger to a free society.

AMERICAN PRAGMATISMWe remarked earlier that Eur4eans have commonly

seen Americans as a nation of moralists in politics.There is another side to the American character,though, and it is marked by suspicion of the do-gooderin the political arena.

The roots of this suspicion may be traced in part tothe prevailing AmeriCan view of politics, which isclearly pragmatic. In part.it may also be traced to theconviction that politics is a special realm, a "lower call-ing": that attracts only the "second best." While thisview is altering today, its force is far from spent, and ithas not been eliminated by public acceptance of theneed to improve the moral level of political life.

But we remain today, as in the past, quite ambivalentabout the proper role of morality in politics. A passionto infuse politics with moral purity is coupled with acertain skepticism about the appropriateness of linkingthese separate spheres of life. As Americans painfullydiscovered in the case of Prohibition, efforts to promotemorality through governmental .action may have theeffect of debasing rather than purifying the politicalprocess.

Moreover, in their voting behavior, Americans havealways eVidenced a certain fondness for pragmatists aspolitical leaders. Given their idealistic tradition, Ameri-cans still tend to respond positively to a political leaderwho summons them to embark on a great crusade. Poli-tics is, after all, still something of a morality play in theUnited States.

But the people are only likely to follow such a leaderwith their votes iflike Franklin D. Roosevelt orDwight AI Eisenhowerthe crusader is perceived ashaving practical skill and judgment. .

2 3

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ABOUT THE AUTHOR

Lon L. Fuller

LAW AND MORALITY

2 6

LON L. FULLER is Carter Professor ofGeneral Jurisprudence, Emeritus, atHarvard University, where he h-as beena member of the Law School facultysince 1939. He previously taught at theUniversity of Oregon, the University ofIllinois, and Duke University. Amember of the Massachusetts Bar, hewas in private practice in Boston for anumber of years. His published worksinclude The Law in Quest of Itself, TheMorality of Law, a casebook in the lawof contracts, which he edited, andnumerous articles on jurisprudence.

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VIII: LAW AND MORALITYby Lon L. Fuller

Law and morality. to varying degrees, regulatehuman interaction in society. sometimes reinforcingone another, at other times imposMg contradictoryobligatMns.

But there are also many laws that have litte to do'with the larger issues of moral conductwit 1 secur-ing justice, equality, or such other forms of "g od- aslimy dbe eemed desirable. These laws are, ther.pragmatic regulations for facilitating or making pos-sible orderly relations between people.

Still other decisions affecting the conduct of societyare not guided even by these pragmatic: regulations.Such decisions cannot be reached through the applica--

tion ot impersonal, objective rules: indeed, the basisfor them cannot be found in either law or morality,and VII they illy binding on the individuals concerned.

To understand these issues. I suggest we e.aminesome of the actual operations of a legal order and theways in which legal rules and processes are employedto shape and cmntrol human behavior.

TH RITE OF THE ROAD..I Should like to begin with a body of law regulating

vehicular traffic and known as "the rule cif the road.''Over mast of the world the ride is that you pass tfze

7 oncoming vehicle on the right and overtake the yehi-,L..

22

cle moving ahead of you on the left. A minority ofcountries, including Great Britain, have an oppositeruleyou pass on the left and overtake on the right.Though the rule is now embodied practicallyeverYWhere in written statutes, it took its origin inunwritten customary practice, which helps to explainhow there came to be two rules, each serving the samefunction within its own territory.

"The rule of the road" would seem to present littlein the way of tensions between law,and morality. Theman with consideration for others 'and an ardent de-sire not to do harm to them will .as a driver follow therule of the road. If he is morally indifferent to the fateof others, he will nevertheless be likely to observe therule of the road, not only to avoid being brought intocourt, but to save his own skin.

There are problems, however. Even in ordinary traf-fic, rules of the road depend on a sense of responsibil-ity toward the other fellow and Some perception of theproblems he faces.

The law of traffic.is thus not merely punitive; it isessentially facilitative. It lets the driver/know, withsome assurance, what he can expect, not only from thetraffic officer, but from other drivers as well.

This matter of knowing what to expect is basic inany functioning legal order. In his book, The Law ofPrimitive Man, Adamson Hoebel writes that a visitor tothe Musk Ox Eskimos in Candda learned that all fif-teen adult males in the community in the early 1920shad been either a principal or an accessory in a mur-der. HOebel reports:

For each of them "the motive was invariably somequarrel about a woman."

In part, the Eskimo difficulties are enhanced bythe lack of marriage and .divorce rituals whichmight demarcate the beginning and the end of amarital relationship. Marriage is entered intomerely by bedding down with the intention of livingtogether; divorce is effected simply by not living to-gether any more.There may be a certain irony in comparing a mar-

riage ceremony with a highway stop sign, but theanalogy is not lacking in a certain validity.

THE LAW OF DIVORCELet us consider briefly the law of divorce. In former

times that law was to a large extent "objective" and"impersonal." To obtain a divorce a party to the mar-riage had to prove some specified act or omission onthe part of his or her partner. Among the acts thatwould justify the granting of a divorce were adultery,desertion, habitual drunkeness, and other similarforms of misbehavior. This meant that the law of di-vorce was, like the rule of the road, impersonal and"act oriented."

Recently there has been a development in manvjurisdictions that is called "the theory of thebreakdown-of-the-marriage." Instead of having toprove some specifically defined misconduct by theparty against whom the divorce suit is brought, whathas to be established is that the parties have lost thecapacity for at functioning marital relationship.

Perhaps the best test of a loss of this capacity is tohave a skilled mediator attempt a ieconciliation of theparties. But the judge who has the ultimate power todecide the case may or may not have any special

2 8 23

aptitude for guiding a mediative procedure toward anultimate reconciliation.

If, after discussing with the husband and wife theirconceptions of the problems that have caused theirmarriage to fail, the judge grants a divorc.e, this diNzsnot mean that the standards that have guided him to'that conclusion can properly be categorized as either"moral" or "legal." Neither party may have acted im-morally or illegally, but their divergent dispositionsmay have made a successful marriage impossible.

RELAXING THE RULESIn our complex and densely populated societies

there are many decisions that cut deeply into men'slives, but that cannot be shaped or justified by stan-dards derived directly from morality or law. Anexample would be zoning regulations. These regula-tions may limit the size of a house, determine howclosely the house can be located to the street it faces,stipulate how high a radio antenna on the roof can be,and so forth.

Regulations of this sort can often be relaxed on ashowing of a special need to make an exception in thecase at hand. The request for a relaxation of a particu-lar restriction will be brought before an administrative'agency, which in deciding whether to grant the relaxation will proceed in a manner much like that of a courtof law.

But what may be lacking is the guidance of formalrules stating with some precision under what condi-tions the normal restraints may be lifted. On whatbasis, then, is an exception to the regulatory law to begranted? The householder may have an expensiveradio and may ask to be given the privilege of extend-ing his antenna to a height above that normallya4lowed. He.may rest his request on any number ofclaims tending to establish that his situation is.dspe-cial one: He is working on an invention affecting radiotransmission that requires a higher antenna; he is aphysician who wants to give advice to patients whohave radii) sets, but no telephones, shice they live in asomewhat distant mountain range.

WHICH ONE SHALL HE SENTENCE?Let me conclude with another hypothetical case that

may not be readily decided either by rules of law orfamiliar principles of moralitN. Two men, strangers toone another, are charged with committing identicalcrimes. Both admit their guilt.

It happens that the only available prison is sopacked with convicts that there is only a single cellwith room for one more. The judge cannot send bathmen to prison; which one shall he sentence?

It would hardly be befitting for the judge to sugg stthat the convicted men throw dice to see which one ofthe two goes in and which one stays out. Suppose thatone of the convicted parties has over the years beenconvicted of ten different crimes and served a term ofimprisonment for each. The result is that jail has be-come for him almost like a home, and he has no spe-cial dread of serving another term. The other man hasnever before been convicted of a crime and serving aterm in jail might or might not put an end to his incip-ient criminal tendencies.

The judge cannot send both men to jail; which oneshall he sentence?

ABOUT THE AUTHOR

Ernest van den Haag

THE EFFECTIVENESS OF PUNISHMENT

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ERNEST VAN DEN HAAG is adjunctprofessor of social philosophy at NewYork University and lecturer in sociol-ogy and psychology at the New Schoolfor Social Research. He is also apsychoanalyst in private practice inNew York. His dozens of articles, onsubjects as diverse as art and cultureand political theory, have appeared inanthologies and scholarly and popularperiodicals. He is also the author ofseveral major books including TheJewish Mystique, Political Violence andCivil Disobedience, and Punishing Crimi-nals: Concerning a Very Old and PainfulQuestion, which offers a full discussionof the issues raised in this article.

2 9

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IX: THE EFFECTIVENESSOF PUNISHMENT

by Ernvst an den Haag

SI11111'' dl t. A11111(1411 Ild11111.111 to any sm ii,t% that%vislies ury thy lite and liberty of its invinhyrs.'may vyt si.1,11) advanta,..tyous to individuals.

Therefore. I.rnninal Iii%vs must proclaim thesi, ts to%yr0ll.4 and threalyn punishment to thosi. liii

commit them.Courts distribute thY thryatened penaltivs to pyrsons

thv find t4tliltv of havily.; comillitted thy dl ts theforbids.

II die acts such as ary mut.-ally justified. i \thy punislitomit of those %dm bryal,Bum that the puilislinyent is My( ti% e ill

lavThy temptation to do %%hat is forbidden h% 1,1 111`.

always been , ith (Is. Vcy IA1)1'11141 11011-1 parad111'1.illItie 111' (1111h1'(1 II) ti111:111PIllptilli011. TOIS1111',.vorifs. -The seeds ot 1,%ery (Time ary in each (Illy,-Tin, threats of fh u. fii are ilvechill to pryvynt Illyni fromflo1.eriii,4, to. tontrol I rimy, to entort e thy fides indis-pensably to moral and to social life.

ma% 111' 11'1111)1yd to defy natural 1:11.1.,, too. but thi,fa%v of ...fra% it% enloircvs itsetf by ifyleatitil; if ,,it. lio%,eer, unless %yr i1r1! plII1k11141. 111' 1.111 (11'1111(11111)1 1:111S and profit from OW' det TherYtorY.

threats ot punislinivill must by attai hyd Iii li,t;a1 prohi-bitions. Like prmilisos. these threats rymain crediblemil% if thyv are itiTied out. tlim ari. credi-bly, they cannot be elle( ti% I'.

T111' 1111011)'11.1'1's 1:1111 111I!

1. in(1i1.1iVI'111',O. III 11( 11111'. and perhaps of those tvho,altlim11411 tempted. rystraiiird theinsyl% Vti i rom bryak-lin; the lav. ilia% sYr%pre% ent them from syylviie.; ry% yiltze on thvir But.abovy all. punislimmit inilispytishbli, to make theIlirvats III thi. In redihly and !lurch% to dytyr otherstrom iolating la Illy punishyd lavhreakerdid. \\*Mimi( initial punislinlynt threats %%mildamount to !Mills. and rion, milil pa% .

1'1 1St I \I IA \ti 1)I..TERRIA(My ryason Illy rime rate is I urrmitIN risky.; is that

so fm% offenders ari, punisliyil---less,than peruent IIIrimos lead to prison tyrilis -that 1 rime does pa%

for man% peopli,. I 11)%%m yr, thrvats. it tiles ry-ma 0 eir", 1e.1nt.f :TIN! tlytyrmost pYopli,, most ol the trom hal thy lawProhibits. It is possihly 111.11 additional primly might be

deterred by still harsher or more certain punishment,but we prefer tolerating more-burglaries to cutting offthe hand of a third-time burglar, as is done in somecountries such as Yemen, Saudi Arabia, and Lybia.

Most of us do uot seriously entertain the criminalopportunities offered by life, let alone deliberatelyweigh the threats of the laW against the possible ad-vantages of crime. We have absorbed the laws' prohib-itions and the moral norms on which they rest throughthe socialization process that is part of normal grow-ing up. We don't consider committing crimes becausewe have learned to feel that they are morally wrong.

The long-standing and effective threat of punish-ment contributed to our automatic rejection of crimi-nal opportunities as morally unacceptable. "Somemen," the English judge J. F. Stephen wrote, "probablyabstain from murder because they fear ... that theywould be hanged. Hundreds of thousands abstain fromit because they regard it with horror. One reason theyregard it with horror is that murderers are hanged."

They are not hanged any longer, whether becausewe regard the life of the victim as too cheap to makethe murderer pay with his, or that. of the murderer astoo precious to forfeit. The murder rateabout 18,000annually in the United Statescertainly seems high.

Lately some very persuasive statistical evidence onthe deterrent effect of capital punishment has beenpresented. For example, University of Chicago proles-sOr Isaac Ehrlich, after an elaborate statisticalanalysis, concluded that one more execution per yearduring the period 1933 to 1969 would have probablydeterred an average of seven or eight murders peryear. It seems that by failing to execute a convictedmurderer, we may risk failing to prevent other mur-ders that might have been prevented by the execution.This risk strongly argues in favor of the death penalty.

DOES DETERRENCE WORK?

The size of the threatened punishment and the prob-ability of suffering it are only two among many influ-ences that deter us from crime. The effect of legalthreats differs, depending on personality and socialsituation; thus the perception of the threat amtthe in-tensity of the desire for doing what the law proclaimsto be wrong will differ from person to person. ,

Even the strongest threat will not deter some per-sons; therefore the threat of punishment, while it con-trols crime, cannot eliminate it. Offenders alreadyguilty of crimes obviously have not been deterred.Among them, the proportion of people who cannot bedeterred at all may be high..

However, most people are deterrable. Society couldnot.function at all if the law did not directly and indi-rectly deter them from- doing what it prohibits,whether it be.something universally regarded as evilfor example, murderor something prohibited tosecure some practical good, such as exceeding thespeed limit or practicing medicine without a license.

The evidence, statistical and experimental, showsclearly that a higher probability of severe punishmenteffectively reduces crime rates. In one experiment of'note, for example, the experimenters found thala cred-ible threat of punishment reduced cheating amongcollege students by two-thirds, but moral exhortationwas ineffective. 9

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EXTERNAL FACMRSWhether the criminal potential that more or less

strong4 inheres in all of us is activated depends onexternal as well .as internal factors. Some peoplewould become criminals under nearly any cir-cumstances; they are internally driven to defy socialrules.

Others might not have become offenders had theylived under more favorable conditions. The wife mur-derer may not have become one had he married-some-one else. The poverty-stricken slum dweller mighthave been law abiding had he been less poor: thedead-end kid might have been law abiding had he notbeen born into a disintegrating family.

The threat of punishment is thus only one of manyfactors influencing crime rates. But threats can bemore easily controlled than, say, family disintegra-tion, which contributes importantly to high crimerates.

Further, some of the social changes from which im-provement had been expeCted have had no discernibleeffects on crime rates. Poverty and ignorance offenhave been blamed for crime. However, only 11 percentof all families now fall below the poverty line com-pared to 50 percent in 1920. Yet the crime rate hasrisen. Education, too, has greatly increased, as haspsychiatric tare, but the crime rate has risen evenm ore.

RISING CRIME, DECLINING PUNISHMENTOn the other hand, rates of punishment have de-

creased: Between 1960 and 1970 the crime rate (per100,000 people) rose 144 percent; the arrest rate didnot keep pace: It rose only 31 percent. And while 117persons. were in prison per 100,000 inhabitants in1960, only 96 were in 1970. In other words, whilecrime rates .went up, punishment rates went down.The decline in punishment occurred in the face of ac-cumulating scientific evidence (by Isaac Ehrlich andothers) which shows (contrary to what had been be-lieved among criminologists until about ten years ago)that swift, certain, and reasonably severe punishmentcan significantly reduce crime rates.

PUNISHMENT AS REHABILITATIONWhy, despite rising crime rates, are convictiomThard

to obtain? Why are courts lenient, despite the fact that50 percent of all violent crimes are committed by per-

-sons out on probation, parole, or bail? One reason isthat We have long accepted the generous idea that of-fenders are misguided or sick and couldand there-fore should be rehabilitated rather than punished.

But no effective ways of rehabilitating offendershave been discovered, either in this country or in anyother. Whatever the merit of various .humanitarianprograms, none have led to lower recidivism ratesthan occur in their absence.

Further, the evidence shows that the proportion ofoffenders who suffer from psychological impairmentis no higher than that of nonoffenders in the samesocioecomimic group.

The conclusion is inescapable that by makingpunishment as uncertain, rare, and mild as we have,

I we have licensed crime.

ABOUT THE AUTHOR

JOhn P. Sisk

PORNOGRAPHY AND OBSCENITY

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JOHN P. SISK is professor of Englishliterature at Gonzaga University inSpokane, Washington, where he firstjoined the teaching staff in 1938. Hehas served as a special consultant tothe National Endowment for theHumanities and to the Aspen Insti-tute's Program on Commuriicationsand Society. He has contributednumerous critical essays and reviewsto both learned and popular journals,and he is the author of .11 Trial ofStrength, which won the Carl ForemanAward for the best short novel in 1961,and Persons and Institutions.

27

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-ADULT' HOOKSTORE AND TII EATER. Is purnogrophy computible ivith a humane culture?

X: PORNOGRAPHY AND OBSCENITY

by John P. Sisk

Lovers of Mark Twain's Huckleberry Finn are gen-erally .bewildered when they learn of the shock andoutrage with which it was first greeted by "genteel"critics.

it was considered irreverent, degrading, immoral,and a corruption of language.

Twentieth-century readers, accustomed to associatenothing but virtue with the vernacular tradition, arelikely to think such a reaction more appropriate forHenry .Miller's Tropic of Cancer. Few or our classicsseem less objectionable, whether in matters of sex or inthe treatment of violence, than Huckleberry Finn.

Twain demonstrated that he could go far beyondHuckleberry Finn in his notorious underground "1601"pamphleta "lurid and scandalous conversation," ashe referred to it with considerable satisfaction. To .Maxwell Geismar, one of Twain's recent biographers,

28

"1601" is a healthy eruption from a man who washighly moral but whose genius was too often frus-trated by the prudish.censorship of his world.

Modern readers, nurtured on William S. Burroughs,Ierzy Kosinski, Gore Vidal, aqd Norman Mailer, mayfind Twain's bawdy fantasy a bit tame, but Geismarhelps us see something important in the Twain ofHuckleberry Finn as well as in the American character.Thirty-five years ago the British writer V.S. Pritchettput it this way: 'The subject of Huckleberry.Finn is thecomic but also brutal effect of an anarchic rebellionagainst civilization and especially its traditions."

PROFANITY AS LIBERATIONIn such a context, Twain is truly an American

prophet. He prophesies Lenny Bruce, for instance,

3 3

Whose profanations of conventional morality are justas liberating and life oriented- to some critics as"1601" is to Geismar.

Falling also in the direct line of Twain's prophecy isthe. Berkeley Filthy Speech moveMent of the 1960s(which: the philosopher Herbert Marcuse, amongothers, endorsed as liberationa I), the tabloids BerkeleyBarb and Rolling Stone; the stage play Che! , the musi-cals Hair and Oh! cakuttO, the Erica Jong novel FearFlyisig, and the movies Deep Throat and Sandstone.

Dartthouth prokssor fames M. Cox has suggested asomewhat different Huck (and, ultimately Twain): afigure driven not by conscience but by the pleasure'principle. Ai the end of the novel, Huck lights out for"the Territory," not to lead civilization, but to playoutside it.

This Huck looks ahead to the psychedelic ,utopia ofTimothy Leary, le the flower children of Haight-Ashbury, to the rock fans of Woodstock and WatkinsGlen, and to books like Charles A. Reich's The Greeningof America and Richard Neville's Play Power that cele-brate the liberational impulse in the counterculture ofthe 1960s.

This version of Huck seems to provide a precedentfor those who are convinced that the forces that frus-trate our potential kr growth' and felfillment can bestbe attacked where they are most virulently concen-trated: in conventional notions about sex and familylife as they are expressed in language and the visualarts.

Such a com`iction goes beyond the commonsenserecognition that a culture oLany compleXity must findways of living with profane reactions to the more in-tense versions of its pieties. It has deep roots in West-ern civilization. One finds it at Work in early Christiangnosticism, in the medieval heresy of the Free Spirit,in Reformation radicals-like the English Ranters, inthe Enlightenment, in the more audacious moments of'Romanticism, and in nineteenth-century realism andnaturalism.

Until fairly recently, however, writers were not freeto use the obscene and pornographic as tools: even thetoo frankly erotic could mean confiscated editions orprison.

ELEVATING PORNOGRAPHYNevertheless', theunderlying if often implicit theme

of this adversary and transgressive tradition has.allalong been that set forth in our time by Herbert Har-cuse: that Oros is always revolutionary, and eros iseverywhere in chains. In time, with the relaxation ofcensorship that has followed the weakening ofJudeo-Christian concepts of sexual morality, this viewhas meant nOt simply a rdease from restrictions be-lieved by more radictil critics to be life denying, butaiielevation of .the obscene .and pornographic to the lib-erational and holy.

Thus, as Northwestern University professor PeterMichelson argues in The Aesthetics of Pornography, por-nography in its highest degree of development "hastaken on the moral and artistic 'high seriousness'necessary to make it a prOperly artistic genre." Eventhe .smut tabloids, Michelson contends,. turn "tradi-tional jonrnalism into a mode of moral revelation."

Perhaps this argument should be extended from

3 429

pornography to include films like Straw Dogs, DirtyHarry, Mean Streets, and The Wild Bunch, in which anintense experience of ugliness and violence can beseen also as serving to expose the corruption of con-temPorary society and as being therefore of moralvalue.

Clearly, we live in an atmosphere in which somepeople with liberal sympathies find it hard to resist theClaim that books like Fear of Flying, Naked Lunch,andPortnoy's Complaint are liberating profanations. Theybelieve that films like Deep Throat have redeeming so-cial value because they expand sexual horizons andinduce a healthier attitude toward sex by demonstrat-ing that there is nothing shameful about acts once con-sidered unnatural.

IS SHAME NECESSARY?Shame is therefore a crucial term when we attempt

to make ethical choices among conflicting versions ofthe good life. Some, !ike the Marquis de Sade, regardshame as a cowardly impulse, hostile to nature andharmfel to a free society. For author William S. Bur-roughs, when shame ceases to exist, "we can all re-turn to the garden of Eden without any God prowlingaround like a house dick with a tape recorder." ForAlex Comfort, one of the most popular philosophers ofsexual liberation, shame implies fear, .and there is no'longer anything to be afraid of.

On the other hand, there is that order but still vitaltradition for which the psychiatrist, Karl Menningerspeaks: The capacity to feel shame is inseparable froma capacity to feel guilty, and both are indispensable to'humane living. For critic George Steiner, itis point-less to talk of the saving shamelessness of pornog-raphy -but very much to the point to note its "massiveonSlaught on human privacy" and its promise of a to-talitarian. politics as it brutally standardizes sexuallife..

The question now is whether the debate over por-nography and obscenity generated by two such con-flicting visions will lead toward more or less freedomto be truly human. What will be at stake is not only thedefinition of culture, but the question of the extent towhich any culture can tolerate degradations of its val-ues in language and visual image before it ceases to bea form in which human naiure can be developed.

Few people would Want a society so unanimous thatobscenity and pornography would he impossible, forthis might well be the kind of tyranny, in whi