Tuesday, September 4, 2007

Tom Flanagan and Polygamy

Tom Flanagan weighs in on polygamy in today's Globe and Mail, again further suggesting that this is becomig a social issue. He makes a good observation -- namely that a large cohort of unmarried, mature males is a socially destabilizing factor. This something that China and India are dealing with in spades as the demographics of the male to female balance is thrown out of whack by sex selection through techniques such as abortion and infanticide. Unfortunately, he mixes his thoughts with some pseudo-biology and bad legal thinking.

First, let's look at the psuedo-science. The first aspect is that he suggests that there is a real relationship between polygamy and anti-democratic values because of the effect that polygamy has on the balance of available women to available men. That is, Professor Flanagan's theory is that rich and privileged men will sop up all the women leaving a large unmarried class men free to stir up trouble and destabilize society. This assertion is made without any real evidence that even in the areas where it has been practiced that polygamy has a significant effect on the male to female balance. It also fails to explain the growth of democracy in colonial communities such as the United States and Canada where there were likely early imbalances in the sex ratio due to the fact that early settlers were more frequently men than women (at least for a few generations).

The second piece of pseudo-science is that Professor Flanagan suggests that there is no evolutionary advantage for women, as opposed to men, to have multiple sexual partners. He argues this from the idea that women do not increase the number of off-spring by sleeping around. This oversimplifies the evolutionary principle which focuses on survival rather than purely numbers. For example, biologists observe the cuckhold phenomena where females look for partners to father their children who are not necessarily the partners who will raise their children since the characteristics that are desired in each role are not necessarily the same. While there may be truth to Professor Flanagan's argument absent greater analysis it seems like wishfull thinking replacing scientific observation, experimentation and analysis.

The bad piece of legal thinking this: Professor Flanagan suggests that even if the law is never enforced it should be maintained in the criminal law as signal of societal values. This is a very evil type of reasoning for two reasons. First, it undermines and makes a mockery of the criminal law. The criminal law should, to my mind at least, represent the code of reprehensible conduct that will attract the most severe of society's punishments. To the extent that we include behaviour that is then tolerated we undermine that message. The second evil embodied in this approach is that it opens the criminal law to selective and unprincipled application -- we will tolerate mormons but African muslims with multiple wives? Forget it. In many ways our drug laws embody these problems already: they are openly flaunted and unevenly applied and they undermine respect for the criminal law.

Arguing against polygamy from science should be backed by more than simplified grade school male dream versions of Darwn ('it is my destiny to mate with as many women as possible'). The early twentieth century's experiments in eugenics came from oversimplified Darwinian approaches to linking science and political or cultural behaviour. It should also recognize that the law and society have many different tools to communicate values. For example, polygamy could be decriminalized but not legalized (eg no polygamous marriage will be recognized). Similarly, the social tools of derision and exclusion can be equally, if not more, effective in communicating a message about societal norms.

All that being said, I am still not sure why this debate needs to be had at all or if had, had in the abstract. If Bountiful is an issue -- use the law and get on with it. If it is not, then move on.

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