The Law of Geeks
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.