Over the last year or so I keep having iterations of the same very bizarre conversation about whether it’s a good thing for us to judge people for engaging in activities that were, until very recently, discouraged by “prohibition norms” (i.e. norms that prohibit a specific activity). Here is a caricatured version of the conversation for casual sex:
Me: We should have really strong norms discouraging casual sex and we should be pretty critical of friends and family who engage in it.
Interlocutor: Why are you such a prude? Casual sex is a lot of fun! Why do you want to make fewer people have fun?
Me: Do you think, in cases of casual sex, that there’s a risk of misunderstanding regarding whether consent was given if someone is extremely inexperienced?
Me: Do you think that any event occurring behind closed doors with someone you’re not necessarily close to in the middle of the night is almost necessarily a precarious place for people to be, and that things are likely to go wrong if we encourage that sort of interaction on any large scale?
Me: Do you agree that the “best” type of casual sex involves both parties’ genuinely making sure that their counterparty is enjoying themselves, as opposed to a transactional “finish-and-go”-type arrangement, and that it’s difficult to encourage people—especially young people—to consider others’ needs that deeply, especially when (as above) this is virtually always a behind-closed-doors encounter without witnesses and therefore without the obvious judgement of others?
Me: Well it sounds like you agree with me that there are huge issues with most casual sex that does occur, i.e. that you agree that the world is not clearly better when we “judge” casual sex less than we used to.
Interlocutor: Oh, well, I mean, all of the scenarios you mention are bad and obviously I think people should be more responsible and stuff, but you can’t punish everyone just because a few people do it badly!
Me: Ok, sure—I’m happy to accept that I’ve maybe made the wrong trade-off between respecting individual agency and avoiding bad consequences—but do you at least then agree that in your world it’s really important for us to have vocal and frequent conversations with our friends and family encouraging them to not engage in casual sex until they are sure they’re unlikely to do anything unethical?
Interlocutor: Oh, but I mean, it’s just a bit of fun! Why do you want me to be so serious about it?
I have variants of this conversation with respect to nuclear-family gender norms, norms discouraging drug taking, norms discouraging polyamory, etc. The counterarguments start with a nonchalant consequentialist argument from some idealised paradigmatic case, followed by a concession that the idealised case isn’t representative matched with a principled case against restricting the behaviours of well-behaved individuals, followed by a return to the earlier stance of nonchalance in spite of the earlier admission that there are often serious issues with the activity! Astounding!
There seem to be two basic truisms about most rules, be they law or norm:
- The rule will almost always be coarser than we would ideally like: we set the voting age at 18 even though some people are probably mature enough to vote by 16 and others still not by 40; it’s polite to cover your mouth and nose for sneezes even when they result from allergies and not from an infectious disease; and people will glare at you for taking your shoes off on a plane even if your feet happen not to smell at all. The question is not “does the rule restrict harmless activities” (it always does) but rather “can we make the rule more fine-grained with publicly available information?”. Everyone can claim their feet don’t smell bad (and therefore that the rule shouldn’t apply to them), but we generally don’t know if they’re lying until after they’d already taken their shoes off. A norm of “only people with smelly feet must keep their shoes on” relies on information that will not be available to anyone except the person the norm needs to restrict—hardly a neutral observer who is free from conflicts of interest!
- The only way around this problem of insufficient publicly available information is better people: if we trusted everyone to be honest about their foot odour, we would not need any norm against on-plane shoe removal. The law is not enacted for the righteous but for the sinful, after all.
On truism (1), I’m happy to accept that I might have made the wrong trade-off when I say “when we judge all casual sex really harshly, the reduction in ‘good’ casual sex is worth it because of the ‘bad’ casual sex we’ve avoided”. This is an especially easy claim for me to make seeing as I object to casual sex (and most drug use, polyamory, etc.) on religious and ethical grounds as well as these purely consequentialist ones, but I can fully appreciate that those who don’t share my specific religious and ethical convictions would find this trade-off overly puritanical. So maybe the necessary coarseness of rules really is a reason for us to minimise prohibition norms and the associated judging of prohibited activities. But if that’s really the case, then truism (2) should suddenly become far more important, especially since truism (1) also applies in reverse: the absence of a rule will almost always be coarser than we would ideally like, since it will allow things we didn’t intend or want when we relaxed the rule (e.g. relaxing airport security would certainly relieve us all of a substantial burden when boarding a plane, but it would also presumably make it easier for terrorism to occur).
Stated in other words, this means that prohibition norms must be replaced with “responsibility norms”—i.e. norms explicitly geared to encouraging responsible behaviour around the activity. If you want to avoid judging all casual sex, that means you have to judge specific instances of casual sex instead and have long, vocal conversations with your friends and family where you make sure they’re sufficiently responsible to engage with it sensibly. It means you have to be prepared to judge someone who has casual sex when they weren’t ready to or shouldn’t have in the same way you would judge someone who goes on a continuous 10-hour drive the day after getting their licence or who drives while very hungover and possibly still over the blood-alcohol limit. Activities like casual sex that were formerly prohibited by norms were prohibited in the first instance precisely because of how badly things can go wrong when they’re treated laissez faire. There is no tenable case where casual sex or drugs or polyamory can be completely free of judgement. They can’t ever be “just a bit of fun”.
And if it sounds too unpleasant to vocally and explicitly dissect whether friends and family are behaving unethically and why, then fine! Join me in the blanket-prohibition norm camp. I am in favour of blanket prohibition norms at least in part because I think puritanism comes more naturally to people than nuance: “did you have casual sex at all” is a far easier question to answer than “did you have casual sex while doing all the specific things you needed to do to make that a safe and mutually beneficial act”. But it’s clear that in either case we should never be comfortable with seeing these things as “just a bit of fun”, because we should never sit comfortably with conditions ripe for deliberately ambiguous consent, outright sexual assault, or transactionalised sex. You could argue (I wouldn’t, but you could) that the heightened likelihood of very bad sex must be tolerated in order to achieve other ends (e.g. not unduly restricting the behaviour of responsible, safe agents), but that is still not an argument for ignoring that heightened likelihood. The available options, on any of these questions, are “create puritanical prohibition norms to stamp the activity out as much as possible” or “have a bunch of really difficult conversations to reinforce the gravity of doing something wrong”. That’s all. There is no good world where these things shouldn’t be judged.
If I were to be really uncharitable in my reading of this, I would say that people hold the “just a bit of fun” view because they don’t think they would ever do anything wrong and they want to avoid having hard conversations with people (since these are always unpleasant). But I think that would be unfair, and inaccurate. I think the bigger problem is that all people’s paradigmatic image of these activities—be it casual sex, drug taking, polyamory, etc.—is monochromatic: the “live-and-let-live” camp pictures a night of harmless fun, and the conservative camp pictures an exploitative interaction with a high possibility of undesired pregnancy, sexually transmitted infections, and abuse. People are perfectly capable of consciously understanding that their paradigmatic image of these activities is not, in fact, representative (or, at least, the “live-and-let-live” camp is capable of acknowledging this—I certainly know some conservatives who would insist that all casual sex is necessarily terrible), but that doesn’t change the fact that they keep using this paradigmatic image in any future considerations of the topic.
I’m not really sure how to get around this problem. Preliminary psychological work on this stuff would indicate that people either see things as high-risk low-benefit or low-risk high-benefit (i.e. they struggle to imagine that a given activity might be both potentially very beneficial and potentially very risky, so their paradigmatic images will always be clearly net-positive or clearly net-negative). That being said, we (as in Australia) seem to have achieved the right balance on at least some things, such as driving: driving is a clear benefit for the driver (no taxi fare, quicker than public transport, etc.), but we as individuals tend to get very judgemental very quickly when someone tries to drive in an unsafe way (e.g. driving while tired, drink-driving, driving needlessly recklessly), so it’s clearly possible to have selective judgementalism on performance of a given risky activity, at least in theory. I’m just not sure exactly how we would ever achieve this for casual sex or drug taking.
 Some clarifications on my use of the word “judge”: I do not mean “judge” in the sense of “look down from on high and say ‘I, as someone holier than you, have deemed your behaviour to be unsatisfactory’”. What I mean is: “You know that your actions violate well-established social norms and/or you know that these actions violate your conscience. I beg better behaviour of you, not by my standards but by yours, and not as a superior, but as one infinitely more wretched and fallen than you”. In other words, people should “judge” in the sense that Alyosha or Zozima from The Brothers Karamazov “judges”—not from on high, but from the assumption that they are the “most guilty of all, and the worst of all men in the world” (p.298, Everyman’s edition). Since this isn’t really concordant with the sense of superiority inherent to the word “judge”, maybe a better word would be “admonish” or “exhort”, since neither of those have the inherent connotation of superiority. But, 95% of the people I have this conversation with don’t know the words “admonish” or “exhort”, so I’m sticking with “judge” in this post.
 Finucane, M. L., Alhakami, A., Slovic, P., & Johnson, S. M. (2000). The affect heuristic in judgments of risks and benefits. Journal of Behavioral Decision Making, 13(1), 1–17. <a href=”https://doi.org/10.1002/(SICI)1099-0771(200001/03)13:1https://doi.org/10.1002/(SICI)1099-0771(200001/03)13:1<1::AID-BDM333>3.0.CO;2-S