Almost any rule, low or ethical principle can be deconstructed using what I call border anomalies. The first time I was aware of it was as a Harvard freshman in the late Sixties, when all assumptions, good and bad, useful and not, were considered inherently suspect. The college required all students to wear jackets and ties to meals at the student union, and up until my first year, nobody objected. But that fall, my classmates set out to crack the dress code, so they showed up for meals with ties, jackets, and no pants, or wearing belts as ties, or barefoot. (Yes, there were a lot of future lawyers in that class.) Pretty soon Harvard gave up, because litigating what constitutes ties, jackets and “proper dress” became ridiculously time-consuming and made the administration look petty and stupid. Of course, there are good reasons for dress codes—they are called respect, dignity, community and civility—-but never mind: the dress code couldn’t stand against those determined to destroy them by sending them down the slippery slope.
If any rules are to survive to assist society in maintaining important behavioral standards, we have to determine how we want to handle the effects described by the Ethics Incompleteness Theory, which holds that even the best rules and laws will be inevitably subjected to anomalous situations on their borders, regarding which strict enforcement will result in absurd or unjust results. The conservative approach to this dilemma is to strictly apply the law, rule or principle anyway, and accept the resulting bad result as a price for having consistent standards. The liberal approach is no better: it demands amending rules to deal with the anomalies, leading to vague rules with no integrity—and even more anomalies. The best solution, in my view, is to regard the anomalies as exceptions, and to handle them fairly, reasonably and justly using basic principles of ethics, not strictly applying the rule or law alone while leaving it intact.
That works well with “one and done” anomalies, but with those that are going to hang around and be repeated over along period of time, it is less effective. The obvious disparity between how the anomaly is handled, seemingly ignoring the principles behind the rule, and how the situations falling squarely within the rule are treated slowly erodes support for the rule by making it appear arbitrary and ridiculous. Call it “The Dress Code Effect.”
Frankly, I have no antidote for it.
“The Dress Code Effect” seems to work especially well to dismantle efforts aimed at establishing societal standards regarding what we used to call “vice.” Gambling: Once the state accepted the bounty of state lotteries, explaining why it shouldn’t also allow casino gambling became more difficult. Drugs: Even though “medical marijuana” is substantially a ruse, the existence of a legally accepted use of the banned substance made banning its recreational use difficult to sustain. Prostitution: the legal and popular acceptance of sexual surrogates to provide “sex therapy” for the physically handicapped has already challenged opponents of legal prostitution to explain why paid sexual services for the disabled should be legal while providing the same or similar services for the physically able can result in criminal charges.
And now we have the Snuggle House. Opening in Madison, Wisconsin, a college town where no dress code would stand a chance, this innovative new business offers “cuddles” without sex to lonely, needy adults just hungry for hugs. Expensive hugs they are: customers pay $60 an hour for a single-cuddle and $425 for an overnight spooning. But no sex. Never. Can’t happen. Get your mind out of the gutter.
I haven’t queried my wife, but I’m pretty sure she’d regard a surreptitious, extra-marital over-night snuggle as adultery, or at least grounds to send me to the nearest Motel 6. One of the most important reasons to prohibit prostitution is that it destabilizes marriages, facilitates domestic betrayal and harms innocent family members. How much less of a risk to cause these undesirable results is snuggling? Society also has a legitimate concern regarding the exploitation of vulnerable women and young girls by the prostitution industry. Is a woman who spend her nights snuggling with strangers, no matter how disgusting they may be, materially better off than a prostitute? Is snuggling really just prostitution-lite, or hooking with training wheels, a way to lure young girls into the next stage of intimacy for profit?
I’m certain of one thing: any legislator who tries to make a case for banning the Snuggle House will be ridiculed by the news media. What could be harmful about a little cuddling? Voila! The Dress Code Effect!
The truth is that rules can never control conduct sufficiently to overcome those who are determined to undermine them, in the absence of a community and cultural consensus that the conduct is unethical and not to be tolerated. Leaders, governments, authorities, laws and rules can and should point the way, but authority, especially in a democracy, is never enough. That is why it is essential for the public to possess the ability and discipline to think these ethical problems through, carefully and objectively, considering long and short-term consequences and worst case scenarios, before leaping down those slippery slopes.
My classmates didn’t, though they had the excuse of being young. I don’t see any evidence that the today’s mature American public possesses that ability and discipline either.
Pointer: Headline News