The Law of Geeks

Sorry, folks, this post is not about legal rules of interest to your typical fantasy-loving geek. Go. Elsewhere.

Rather, I am responding to William Saletan’s new column about Transhumanists, who I think share many of the characteristics of the old-time geeks of circus lore.

Saletan is sanguine about the socio/legal/moral implications of permitting Cat Man, Lizard Man, Cyborg Man, and other would-be Ousters to modify themselves with old-fashioned surgery, new fashioned IT, and newer fashioned DNA modification. He offers the following “analogy” paragraph to suggest the logic for permitting this activity:

Why do we shrug at botox, liposuction, and circumcision? Why do we think it’s no big deal if models, actors, and athletes have themselves cut open for professional advancement? Why did tattoos remain illegal in parts of the United States until three weeks ago? Why did we have “ugly laws” that ordered maimed people off the streets? Why did we operate on sexually ambiguous infants to “correct” their gender, often with disastrous results?

These examples raise a number of questions.

First, how strong is the normative argument for constitutionalizing the right to self-sculpt? Does it depend on the type of right? (Tattoo: very expressive/can be religious/little privacy content; Liposuction: less expressive/never religious/some privacy content; Cyborg: not expressive/possibly religious/high privacy content.) Second, would Randy Barnett’s libertarian constitution find a structural limitation to government’s power to prohibit cat man from adding a tail? Third, are there distinctions between self-sculpting methods that we can borrow from, say, consent theory – here, I’m thinking about work on alienability and inalienability. Fourth, how much of our thinking about this problem is distorted by the anarchic future of human-modification almost uniformly painted in sci-fi and other futurist works? Jurists value order uber alles: is the sci-fi anarchic frame leading us to be overly sympathetic to regulation? And finally, is it really “irrational” to make distinctions in legal rules between “gross” and “not-gross” sculpting?

By gross, I take it that Saletan means mutilation of the body that makes you look less like other people. By not-gross sculpting, I take that Saletan means mutilation that makes you look less like other people.* There are good reasons for the law to treat these two intents differently. For one, we might think -rightly or wrongly- that people who don’t want to look like other people, or want abilities that ordinary humans lack, are likely to behave in anti-social ways. Athletes and actors sure do.

So here’s the question: should the law encourage geeks, discourage them, or remain indifferent?

*Other definitions, such as attractiveness or desire to make money, don’t work. The Cat Man, for instance, is very strong on the copyright implications of his image, which is why I haven’t posted it here. So is lizard man. And attractiveness is a very person-specific concept.

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2 Responses

  1. Frank says:

    First, there is a very good, prescient law review piece on this, I think called “Self-Transformability,” from 1991. It focuses on gender-reassignment surgery. But what I say below has much more to do with transhumanism than with that.

    Now for my 2 cents…I basically follow various left cultural critics, and the current Pope, in seeing an obsession with “self-sculpting” as a form of misguided (and ultimatlely self-defeating) selfishness. As Benedict XVI recently said in the encyclical Deus est Caritas,

    [Man] he now considers his body . . . [as] the purely material part of himself, to be used and exploited at will. Nor does he see it as an arena for the exercise of his freedom, but as a mere object that he attempts, as he pleases, to make both enjoyable and harmless. . . The apparent exaltation of the body can quickly turn into a hatred of bodiliness.

    I think you definitely see empirical confirmation of this observation in Carl Elliott’s book Better than Well, esp. in the bodily dysmorphic anxieties that motivate the anorexics (80 pound individuals who are anxious about how fat they are) and bodybuilders (behemoths who always feel “too small”. . . and who only seem to be happy when they are on the upswing of some steroidal cycle).

    In that book, even after tons of procedures and backbreaking effort, almost no one seems happy with the body they get, and indeed they start to fetishize the process of *change*. . . a desire that, paradoxically, can only continue driving and motivating one as long as it is unfulfilled . . . thereby leading to a “defense mechanism” of always underplaying how satisfied one is with one’s present appearance.

    It’s important to note that the transhumanists undermine the biological bases of human equality by splitting off into a distinct species. Max Mehlman’s 2000 piece in the Iowa Law Review on genetic engineering has a very good rundown of the challenges to social justice that can be caused by that.

    And finally, on the “plus ca change” side, here’s a nice quote from Stewart Ewen, on sumptuous dress among medieval nobles:

    “In a world where material scarcity and hard work were [common]. . . such excessive images connoted a power over others: the employment of enormous forces of detailed labor for the purposes of body decoration; the enjoyment of waste and leisure in a context where most lives were spent in arduous squalor.”

    As long as there are hundreds of millions of people without adequate health care, these extraordinary cosmetic interventions deserve to be mocked and regretted, not celebrated. They divert medical attention from real need to the most dubious goals.

  2. Ted McClure says:

    We see from Dave, Frank, and the sources they cite that “bodyhacking” raises issues of resource allocation, expression, faith, privacy, negative stigmata, and social coherence. I will add one more – fear of hidden capabilities and alien motives, where we worry that people who look just like us have abilities we do not have (e.g., witches, soldiers coming back from combat, martial arts experts) or motives we may not understand (e.g., homosexuals, zealots, schizophrenics, heathens).

    As highly visual creatures, humans react to visible differences, sometimes positively but more often negatively. Until a particular visible difference drops below some level of salience, typically because some other difference dominates consciousness, we react as our upbringing, social milieu, and individual experiences have taught us. We learn how to respond, perhaps distinguishing between stigmata that are involuntary versus those that are voluntary, perhaps approaching a point where we become consciously blind to visible differences (whatever happens at a less than conscious level). I suspect that every human reacts with at least a modest adrenalin dump when faced with a visible human difference, such as a bald woman or extensive body piercing, for the first time. Remember that the adrenalin dump may lead to positive as well negative behavior.

    Believed invisible differences lead to different human responses and raise different issues. With no obvious visual stigmata, people may impose some visible social marker (e.g., a yellow six-pointed star) or create an imaginary marker (e.g., “looking like a terrorist”). We seek linguistic and behavioral differences. Where there are no physical differences and we learn of an invisible difference, cognitive dissonance tends to lead us to react with an adrenalin burst. We may react that way to suspicions and allegations irrespective of veracity. And we tend to react more violently to invisible differences, because they mess with our internal reality. The cyborg who looks and behaves just as everyone else will be more frightening than the visibly modified person.

    I submit that artificial human enhancement will happen – will continue – whether we want it or not, human motivations being what they are. We want to be more: More intelligent, more beautiful, more unique or more commonplace, faster, stronger, more acute in our present senses and able to use new ones. We want more abilities, more convenience, and more style.

    Both visible and invisible enhancements will disturb people up to a point. That point will be when such modifications become so common as to be “normal” – when unmodified people are the strange ones. Those who are driven (and sufficiently prosperous) will do it sooner. Others will react with horror – or envy. Others will find modifications necessary or desirable to compete with the early adopters or to belong to social units. Young people will grow up with “mods”, and the paradigm will shift.

    Therefore, I suggest we examine the impact of artifical enhancements on society, as many science fiction authors have done, rather than worry about whether or not such enhancements are desirable. What happens when our Blackberries, Treos, and Ipods are cranial implants directly wired into our brains? Compare the impact of cochlear implants on the signing deaf community. It’s already happening.

    Also, I fail to understand how “splitting off into a distinct species” undermines human equality? First, “species” is a pretty arbitrary concept. Perhaps its time to look beyond labels towards actual similarities and differences. We are not created with equal abilities, although I believe everyone has gifts and can serve. Read David Brin’s Uplift novels. Difference is a sufficient condition for bigotry, but it is not a necessary condition. And similarity is neither a sufficient nor a necessary condition for respect.