What is Private?

The idea that some things are private to human beings concerning intimate relationships is of great relevance today. Intimate relationships, for example, cannot be deemed private in the same way a business is private. It follows, in a legal sense (at least in South Africa CURRENTLY), that commercial acts are disconnected from non-commercial acts in some important ways. Private acts in this very broad sense of the word, are protected from unwarranted state involvement because private conduct has no distinct public interest (is sacrosanct or immune from criticism). 

In the larger context of political ideas framing the private sphere, we might think of the ongoing rhetoric of the ANC ‘National Democratic Revolution’ flooding the airwaves with the concomitant intent to undermine private property. We may then pause to consider some first principles from the communist manifesto. This to fill in the gaps in our understanding of the terms within this particular ideological frame. Moreover, our concern extends to the broader context of how this thinking informs the South African ad hoc brand of socialism more generally. This first approximation on the part of the Pinion Project is to be understood as a basic overview – we trust it will bring some perspective to the readers’ understanding of property (beyond the highly publicised restitution of farmland). 

Marriage and Prostitution

Someone may ask at this point: “Why is the Pinion Project interested in this?” Our concern stems from the sort of thinking, explicit in the communist manifesto. This with particular reference to the idea that both marriage and prostitution are understood to be corrupt relationships (on the criteria that they both have implicit commercial interest). The Economic Freedom Fighters (EFF) have made it clear that they intend to argue for the complete legalisation of prostitution in harmony with this idea. Why one might ask? How might we understand the move by the EFF. Of course one could try to find some, fact-checked level quotes, and pin a position on the EFF to make a particular point. We believe such an effort will do little to explain anything. However, the remedy then, might be found in understanding the history of the communist manifesto, and its two-step plan. First, legalise the communality of women (abolition of marriage together with the legalization of prostitution). To be clear, this legislation should not be understood as an endorsement of anything like classical liberal values. Rather, it is thought of as a transition phase in which the evils of the capitalist system are exposed (a stepping stone to crash the system). The next step is for the state to regulate relationships in which capital or economic gain do not play a role in the procreative act. Children, on such Utopian schemes, are sometimes thought of as the responsibility of the collective rather than the people who produced them (children are not the property of the couple). The state then defines the context for procreation as a matter of legislated social engineering. What is clear on this view is that marriage has no distinct public value. Put another way, “marriage as a bodily as well as an emotional and spiritual bond, distinguished thus by its comprehensiveness, which is, like all love, effusive: flowing out into the wide sharing of family life and to lifelong fidelity” (from the book, What Is Marriage? Man and Woman: A Defense by Robert P. George, Ryan T. Anderson and Sherif Girgis), is of no value in the socialist mind.

“Bourgeois marriage is in reality a system of wives in common and thus, at the worst, what the Communists might possibly be reproached with is that they desire to introduce, in the place of a hypocritically concealed, an openly legalised communality of women.” Communist Manifesto 

The argument is made, via Friedrich Engels (1820-1895 German philosopher, and a committed communist) and his predecessors, that in history the practice of male ownership of property in marriage makes the practice problematic in itself. On this view one sees the all too familiar category mistake – viewing everything via the lens of harmful patriarchy (power), arguably a hasty generalisation. For the sake of brevity, the corruption of relationships via unjustified economic interest does not, we believe, provide a cogent argument to show necessarily (In argument shorthand):

Premise 1: Economic interests are bad

Premise 2: Acts of human commitment have economic interests.

Conclusion: Acts of human commitment are bad 

Indeed, if this was the case, that all human commitments are bad via the communist criteria, then the argument seems to turn on itself, instituting a particular communist form of human non-commitment commitment. Well some may say, at the least, this non-commitment commitment should be thought of as moving to something better eventually (harm reduction). Giving the state the power to re-imagine our private relationships, seems to us an altogether horrible idea (particularly on something so under described). The public appeal to the sense of compassion for equality among people then provides warrant for notions like – all things in common, being understood to mean: no ownership of private property, no marriage and that children are to be educated via the state. 

Communality of Women

South Africa has reintroduced the plurality of wives (not husbands interestingly enough). This certainly did appear, at first, like a relaxing of the law as an even-handed approach by government to matters of social custom. Even the changes to the same sex marriage law had the rhetorical trappings of genuine concern for minorities in South Africa. But is this not the revolutionary state moving toward undermining those institutions, that resist its power, in the name of being progressive? We think here of president Cyril Ramaphosa treating the South African constitution as something malleable (in terms of things private generally as a means to a revolutionary end). Even if this is not part of some grand conspiracy worldview narrative, could this not be part of an idea shift which opens the way to state social engineering, disconnecting our personal commitments in a grab for power? This idea can be imagined in our modern context via the fictional writing of Aldous Huxley’s Brave New World. In Huxley’s book we see the totalitarian government educating the youth to embrace all manner of self-indulgent non-commitment sex acts as a means to control them. Indeed, if the definition of marriage is made to include everything, then it fails to be a meaningful distinction.

Disconnecting Sex from Commitment

The English philosopher, Sir Roger Scruton puts it this way in his book, Sexual Desire, he writes,  ‘Attempts to liken sexual desire to appetite, disconnects the implicit interpersonal nature of human sexual responses.’ Indeed, the sexual revolution assault on sexual reticence can be seen in the deconstruction (level of analysis) being implemented in the sciences. The instrumental explanation of sexual desire championed by Sigmund Freud, Alfred C Kinsey and Michel Foucault, deconstruct sexual desire from the interpersonal sense. The desire for sex is reduced to an appetite. Sexual desire framed as an appetite, fueled the myth that ‘the worst manifestation of authoritarianism is – self-imposed control’. Rape, violence and all manner of pathology are seen to emanate from sexual repression (unconscious mechanism employed to keep undesirable ideas from conscious thought). Indeed, Freud’s theory is unfalsifiable – it can neither be proved true or refuted. For example, the unconscious mind is difficult to test and measure objectively. Furthermore, ideas in the same neighborhood seem disconnected from everyday experience. The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. It is uncontroversial to assert that monogamous relationships, like marriage, have significant benefits to the couple, their children and society at large in terms of health outcomes.  A level of analysis that is in harmony with human dignity must account for self-control (emotional intelligence).

With this said, the South African government is going to introduce Comprehensive Sexuality Education (CSE) in 2020 in schools. CSE has been widely criticised for the Brave New World approach it implements. This is grounds for profound concern and more than a matter of conspiracy theory. The sociological data in defence of the natural family, as the context which best serves the interests of the child, is sufficient evidence that this reductionist view, exemplified in the communist thinking is mistaken. 

Marriage Breakdown

Still, it is clear that marriage is not without its challenges in a post sexual liberation culture. If the #MeToo movement points to any fact, then it is this – sexual liberation has not been without challenges. The notion that, with birth control technology, sex is no longer a problem to be solved but rather a pleasure to be enjoyed by all (at any time), has been found to be mistaken. Consent is an insufficient test when the things being consented to are not defined. Children are particularly vulnerable to those who consider themselves more open-minded than others. It is not clear to me at this stage what the political leanings of Freud and Kinsey actually were. Still, just as Marx admired Charles Darwin (albeit somewhat critically), this neighbourhood of ideas seems to overlap in some important ways that deserve our attention. It is not difficult to see the work of Kinsey fitting the into the dystopian vision of Huxley under girding what is in affect, a wedge between children and family.  Modern Marxist like Theodor W. Adorno, Herbert Marcuse and Michel Foucault have explicitly moved in this direction. Certainly, as John D’Emilio and Estelle B. Freedman, in their book Intimate Matters: A History of Sexuality in America noted, 

“the strongest assault on sexual reticence in the public realm emerged not from the pornographic fringe, nor from the popular culture, but from the respectable domain of science,” 

In her book Kinsey, Sex and Fraud, The Indoctrination of a People by Dr. Judith A. Reisman and Edward W. Eichel they note;

“No man in modern times has shaped public attitudes to, and perceptions of human sexuality more than the late Alfred C. Kinsey. He advocated that all sexual behaviours considered deviant were normal, while polemicizing that exclusive heterosexuality was abnormal and a product of cultural inhibitions and societal conditioning. By purporting to demonstrate a wide divergence between real sexual behavior and publicly espoused norms, the implication was that ‘cultural values surrounding sex needed revision.’”

This revisionist trend has radically undermined domestic codes, profoundly challenging even our understanding of the biological complementary of male and female relationships. The practical outworking of this reductionist view puts the reconstituting of our private relationships in the hands of the state. 

Conclusion

I believe it is almost too late for South Africa in this respect (lack of political will). Still, for the rest of Africa our appeal is – take the time to think about the implications of your actions with respect to freedom, love and liberty.

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By Dieter Lubbe

This article, is a part of the Pinion Project research done in preparation for the Media Campaign Against Human Trafficking (MeCAHT) conference 2018.

Connotations

The United States historic pioneering experiment in democracy, demonstrates the messy journey from the claim in the Declaration of Independence — ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. Then only to see, many years later that is, the structural emancipation of slaves with the enactment of the 13th amendment (from 1776 to 1865). The government, for and by the people, turned out to be a project fraught with challenges against factionalism from both grass roots and within the halls of authority. What is important to recognise in a general understanding of the connotations historically associated with the word dignity, is this connection between individual dignity and the democratic regime. Dignity in this frame, stems from the development of the west and particularly our efforts to avoid such horrors as found in the Nazi concentration camps.

‘the Holocaust shocked the moral consciousness of all civilised peoples into an increased awareness of the inherent dignity of every human being,” Johannes Morsink, Inherent human rights: philosophical roots of the Universal Declaration.

It is true that the idea is not unique to this moment in history or even the west. Still, I find this formulation of the historical intervention seen in both the American experiment and later in the Nazi — crimes against humanity, instructive with respect to the warrant for the word dignity being included in the Universal Declaration of Rights (1948) affirmation of human rights. This historical perspective also speaks to the method of compromise adopted in order to reach consensus in this regard. To jump ahead a little in history, to the former justice of the Constitutional Court of South Africa, 1994 to 2004, Laurie Ackermann. In his book Human Dignity: Lodestar for Equality in South Africa, Ackermann captures, a nuance perspective of the developed essence of the compromise.

‘…in the Abrahamic religious writings and in secular philosophy,… there is the explicit recognition that human worth (dignity) — or something closely resembling it – is the necessary criterion of attribution when considering issues of equality. Not only do these religious and secular philosophical views, as part of the general history of ideas, inform the legal meaning of equality and human worth, but they quite independently form part of an ‘overlapping consensus’ in the sense that the political philosopher John Rawls uses this concept,… An overlapping consensus of this nature can be constituted although different premises are used by different people to reach the same conclusion, in our case the same legal conclusion regarding dignity and equality.’

What is clear from this observation by Ackermann is, ‘overlapping consensus’ — or something closely resembling it, has played an important role in how the term dignity came to be understood in legal terms. Likewise, the debate pertaining to the soundness of competing worldview premises in support of this idea, Kantian, Aristotelian or Utilitarian for example, remains alive to be debated. We see something of this idea from the pen of Martin Luther King, Jr in his Letter from a Birmingham Jail,

‘How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just.’

In Constitutional Law by Rautenbach-Malherbe, we read, ‘Constitution-makers and those who interpret and apply constitutions do not create and cannot obliterate human dignity by their definitions’. Human dignity in this frame is an ontological claim, suggest Professor of equality and human rights law Christopher McCrudden in his article entitled Human Dignity and Judicial Interpretation of Human Rights, that is it purports to tell to how things are. Much more can be said at this junction. Still, for the purpose of this article, dignity so understood, makes a relational claim, that is we are to recognise the dignity in others. Furthermore, dignity collectively, calls for limited state authority [McCrudden]. ‘As a legal concept, human dignity functions not only as a moral value but also as a universal right that guarantees in principle the respect and protection of humanity per se’. [Steinmann AC, The legal significance of human dignity]

Morel Warrant

Ackermann J in the Sodomy case said, ‘The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.’ Ackermann J ruled that the Constitutional Court could not rule on moral claims without sufficient warrant. Still, the dismissal of moral claims by the court in the Ackermann J ruling, is not to suggest that the court cannot rule on moral claims at all.

State v Jordan [104] All open and democratic societies are confronted with the need to determine the scope for pluralist tolerance of unpopular forms of behaviour. To posit a pluralist constitutional democracy that is tolerant of different forms of conduct is not, however, to presuppose one without morality or without a point of view. A pluralist constitutional democracy does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but it is not neutral in its value system. Our Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep civic morality.

The essence then of the argument rests on which moral claims are warranted? Professor Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton explains his understanding of moral reasoning this way,

‘…whether in St. Paul or Aquinas—or in Plato, Aristotle, Musonius Rufus, and others untouched by Jewish or Christian thought—not because it tries to read premises or conclusions off biological or sociological facts. It doesn’t. Instead, it considers what are the basic forms of human flourishing: conditions or activities that are good for us in themselves: friendship, knowledge, life and health, and the like. The identification of these of course takes into account biological and other cause-and-effect facts. But it is focused not on those but on the intrinsic goodness of the various elements of human fulfilment. We can then reason to the moral goodness and badness of types of choice and act by considering which choices are consistent with love and respect for ourselves and all others in regard to each of these basic dimensions of fulfilment. A choice consistent with love and respect for all the goods in all persons is morally upright; one that isn’t, is immoral. That determination of consistency must take into account the fundamental circumstances of all our choices and acts. The basic goods for which we can act are many and various, so we cannot realise them all at once. But they all remain always goods, and each in its own irreplaceable way. So in pursuing some, we ought not to choose to denigrate or damage any of the others. And as they are goods for all people, we ought not to let our choosing be deflected by prejudice, wayward passion, and the like. [Public Morality, Public Reason, November 2006]

With this said we can observe that claims that reports something to be unjust are inescapably moral claims and are hence not immune to questions regarding there warrant. Furthermore, postmodern claims — that ideas and beliefs are not true but only useful for controlling the environment, are self refuting. That is when applied to the idea of postmodernism itself, as only useful for controlling the environment, the argument cuts off the branch it is sitting on, so to speak. Likewise, not every interpretation of what is the case is compatible with the world in which we live.

Rawls, in effect, says look religious people have a legitimate complaint against what has gone by the name liberalism to the extent that liberalism allows metaphysical ideas so long as they’re secular to be introduced into public discourse and account as valid reasons for public policy without giving religious reasons the same standing and permission. But instead of saying, therefore, we need to broaden the permission in theory for reliance Rawls narrowed it [Robert P. George]​

Denotation

Dignity is that whereby a person excels, and merits respect or consideration from other persons. ‘People qualify to be bearers of this right simply because they are human. The right protects the worth that attaches to the actuality of being human’ Rautenbach-Malherbe. The Afrikaans word, menswaardigheid captures the sense in which the word is being used (in terms of worth). This is important when it comes to questions of equity. In what sense are all people equal? The notion of dignity provides criteria — from the actuality of being human.

Immanuel Kant’s influence on ideas regarding the objectification associated with prostitution is relevant I believe. Not only has Kantian thought influenced feminists like Catharine MacKinnon and Andrea Dworkin but it can be argued, has influenced the Constitutional jurisprudence as exemplified in the Jordan matter. Kant held, that to allow others to use your body sexually in exchange for money resulted in the loss of humanity and becoming an object. ‘to allow one’s person for profit to be used for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing’ [Kant Lectures on Ethics].

Andrea Dworkin argues, ‘When objectification occurs, a person is depersonalised, so that no individuality or integrity is available socially or in what is an extremely circumscribed privacy. Objectification is an injury right at the heart of discrimination: those who can be used as if they are not fully human are no longer fully human in social terms; their humanity is hurt by being diminished’ .

Of course Kant held that the only relationship choice, consistent with love and respect for ourselves is monogamous marriage. Equality after all must have a criterion of attribution namely human dignity (equality in dignity). The spouses exclusively yield their persons to each other, so neither of them is at risk of losing his or her person and becoming an object. Recently, the United States Court of Appeals for the Ninth Circuit unanimously affirmed that prostitution is not a constitutionally protected fundamental right. The Court ruled that prostitution as a commercial activity is fraught with dangers that the state has a “substantial interest” in preventing.

‘…panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review…relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs’ assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.’

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