Russell Blackford has flagged up an objection (here & here), which undoubtedly has force, against my hugging argument. Here’s my version of the objection.
Spontaneity, when employed kindly, is a good. If we overregulate social behaviour, then – by definition – this will lead to less spontaneity (and it will also have the effect of infantilizing people). The sort of cautionary principle I talk about is a form of self-overregulation, since its likely effect, if universalized, will be to undermine spontaneity, and, in a sense, pathologize forms of behaviour – such as hugging – that are themselves a good.
Okay, so let’s break down the argument to see if it flies (and I should say that I’m looking at my version of the argument here, not Russell’s, which might be a lot stronger, etc).
1. Is spontaneity, when employed kindly, a good? At first thought that seems an entirely plausible claim. But actually it disguises a lot of complexity. So, for example, maybe the claim is a counterfactual claim – a world with lots of spontaneity is better than a world with only a little spontaneity. Thing is, even if that’s true, it doesn’t show that spontaneity is good in and of itself, it merely shows that more often than not people get their spontaneous acts about right (and remember that it’s possible to employ spontaneity for kind reasons and get it wrong).
2. So is spontaneity good in and of itself? It’s quite hard to know what to make of this idea. Obviously there are large issues to do with how we want to define spontaneity (which I’m not going to get into). But I think I’d want to argue that it doesn’t make much sense to think about the value of spontaneity without focussing largely on outcomes. I don’t think it’s particularly counterintuitive to suppose that if a spontaneous act has a clearly bad outcome, then regardless of whether we think spontaneity if meritorious in and of itself, we’d judge the act as being unfortunate (albeit whether we thought the agent was culpable might depend on a lot of other factors).
3. If spontaneity is not good in and of itself (or not good enough), then the charge against overregulation must be that overall it reduces good outcomes. So, for example, in the case of my hugging argument, the charge would be that my self-overregulation leads to less good stuff (affection, warmth, intimacy) and perhaps more bad stuff (social wariness, nervousness, infantilization, etc). For that charge to be effective, then (1) it has to be empirically warranted; and (2) it has to trump other, at least partly non-consequentialist, moral concerns (particularly to do with the “rights” of individuals).
4. Is it empirically warranted – in other words, is it true that my cautionary principle if applied across the board would result in less good stuff and more bad stuff? Okay, so to recap, my cautionary principle, broadly speaking, holds that:
It is morally problematic to engage in physical contact that has a mild sexual dimension, and one should avoid in engaging in it, unless you have good reason to suppose that you have informed consent, which includes an awareness that the act has a sexual dimension (so de facto consent isn’t enough).
The first point to note is that in this context informed consent does not mean “no touching other people without asking first”, which is a ludicrous rule. It doesn’t mean this because informed consent can be implied. So the example I gave in my original posting was a couple who had been engaging in flirtatious behaviour, etc: in such a circumstance it is reasonable to suppose that de facto consent, which might merely be implied consent (e.g., through body language, etc), is informed consent vis-a-vis the sexual element of the physical contact.
It is also the case that informed consent can be implied by a couple’s shared history. Russell gives an example of a “treasured ex-girlfriend” at the end of his comment here.
And, of course, if physical contact is non-sexual – which might be the case in the sort of ritualistic setting Jean Kazez describes (though it might not be) – then there is (usually) no issue of informed consent over and above de facto consent. Moreover, this will generally be the case if a person is wired up in such a way that the the world is only minimally sexualized (because presumably they’re not going to experience a sexual frisson in the context of ostensibly non-sexual physical contact).
5. This all means that the set of physical acts where my cautionary principle might result in less good stuff and more bad stuff is far from being exhaustive of the set of all physical acts, which clearly lessens the force of the objection (but doesn’t by any means extinguish it).
6. Okay,let’s concede, for the sake of argument, the point that my sort of cautionary principle will result in less good stuff of a certain sort (affection, warmth, etc) and more bad stuff of a different sort (social wariness, infantilization, etc). Is that the end of the empirical argument? It isn’t, because if one is looking at consequences, one has to factor in that by no means everybody is comfortable with spontaneity, physical contact, familiarity, etc. This might be regrettable – in my view it is regrettable – but it isn’t trivial.
For these people, the knowledge that a cautionary principle is in play, together with its purported knock-on effect in terms of a decline of spontaneity, certain kinds of affection, etc., might be a relief. It might make them more likely to put themselves in potentially rewarding situations where they would otherwise fear – perhaps without justification (whether the fear is justified or not isn’t relevant from a strict consequentialist point of view) – they might be subject to unwanted physical contact (and don’t forget people can find it very difficult to say “No” – I find it difficult to say “No”.) For a certain subset of people, then, what would be the overregulation of social behaviour for most people, would be just the right amount of regulation.
This is not to claim that there is a balance here, but it is to claim it is necessary to weigh up the consequences of a decline of spontaneity, warmth, certain kinds of affection, etc, in both directions.
7. But let’s bite the bullet, and assume the consequentialist calculus comes out against my cautionary principle. Is this decisive?
Well, no it’s not, and it’s not decisive for one of the reasons that consequentialist arguments in general tend to run into trouble (and remember, we’re treating this as a consequentialist argument – see point 2). It isn’t clear that the “greater good” justifies potentially infringing on the “rights” of particular individuals. (I should say that I don’t like talk of “rights”, I can’t really make sense of it, but again for the sake of argument we’ll just go with it.)
In particular, it is at least arguable that people have rights against unwanted physical contact, regardless of what that means in consequentialist terms. So, for example, none of us are going to think that it’s okay to beat up on a person just in the case that it turns out that some large number of other people find it entertaining. (And yes, of course, there are layers and layers of complication here to do with the difference between act and rule utilitarianism, for example, and a lot of other things.) Likely, many of us won’t think this is justified even if the person being beaten up consents to their beating.
At the very least, then, there’s a tension between a concern with average outcomes and a concern with individual rights (and indeed there may be a tension between different sorts of individual rights).
In terms of my cautionary principle, then, there are two central issues (if we bite the bullet, and accept the consequentialist calculus comes out against the principle).
1. How careful do we need to be that we don’t infringe on people’s right not to be subject to unwanted physical contact (where the argument is that in the case of hugging de facto consent does not equate to informed consent)?
2. How do we resolve the tension between an interest in maximizing the good things in life (on average) and protecting individual “rights”?
I’ll leave those two questions for another time – or other people – because this has gotten too long and I’ve run out of steam. But just some very quick closing remarks. This issue is complex, and I’m largely making this stuff up as I go along (and yes, I’m sure that’s obvious). So it’s important to remember the position I’m arguing against here is my version of Russell’s objection. No doubt Russell’s take on his own position would be very, or at least somewhat, different, and I’m sure much better for it.