Eugene Kontorovich, whose blogging is a treat, has a wonderful post up on the new German zoophilia. The old German zoophilia was manifested in the civil right to bestiality back in 1969, and the rise of predictably associated phenomena of moral decay – the taste for which, it seems, is on the rise. The new zoophilia champions the rights of animals to be left alone — one might even call it a right of privacy — in seeking to have these libertine liberties reversed (note that animal cruelty laws do not seem to be in issue, though I haven’t studied the challengers’ case well enough to know). The difficulty is the question of the grounding of the right, since moralistic reasons, or reasons of “legal moralism” (whatever those may be) are now widely deemed outré in Germany. The law and religion angle? Well, historically “legal moralist” reasons have included religious reasons as a kind of core example. Professor Kontorovich has an interesting observation about the issue of consent:
I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.
He then notes the now-common move of grounding the moralistic regulation of sexuality in arguments from social harm and public policy, but here perhaps I differ a bit with Professor Kontorovich. It was always the case that the retrograde moralizers grounded their arguments in ideas of social harm, beneficent social policy, and so on. The distinction is not of the method of argumentation now and then, but of the difference between what passes for harm now and then. These two excellent papers — one by Bernard Harcourt (but sadly unavailable without payment) and the other by Steve Smith – come at matters from fairly different angles but gesture toward the same larger idea.