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Translated by Chloé Sautter-Léger
This article in two parts aims to clarify notions of ethics and morality regarding sexuality, and to present the Canadian ethical system—a system that we follow, almost accidentally, to regulate our sexual practices. Part I of this series focuses on the ethical and moral dimension of sexuality: our sexual behavior is oriented by norms, values, emotions, feelings, needs, and desires much more than by hormones (Daoust, 1995; Dorais, 1995; Marzano, 2007). It may be advantageous to become aware of this and take it into account. Part II will emphasize our ability to thrive individually and collectively within an ethical framework. The collective process towards emancipation concerns both sexuality and morality.
In this first part, I will present the moral world views of two French philosophers: a rationalist approach associated with Progressivism during the 1930s; and a libertarian approach that applies modern (political) neoliberalism to sexuality. Paradoxically, these moral systems favour individual rights over ethical reflection.
This article will use the following definitions of morality and ethics: morality is a socially accepted set of normative values which apply to everybody, while ethics refers to individual people’s conceptions of what is good.
How Law Replaces Morality
Over the course of the twentieth century, social morality in Western countries witnessed a shift towards Law—a progressive glorification of individual rights and freedoms at the expense of socially shared values (Bégin, 1999).
To explain this revolution, it is necessary to go over the major steps of the story. In the 1920s and 1930s, various socio-political movements, in line with intellectuals at the time, vindicated sexual rights and called for a more fitting morality than the one imposed by Christianity. This was more in agreement with needs and desires from the perspective of emancipation (Armand, 1934; Kollontai, 1979; Reich, 1972; Tamagne, 2000 and 2005). After the Second World War, social practices underwent a process of liberalization, with the research of Kinsey (1948, 1953), studies on sexual reactions (Masters and Johnson, 1968), the appearance of magazines like Playboy (published for the first time in December 1953), public debates on the liberalization of morals (Lazure, 1970), the commercialization of the contraceptive pill for women in 1960, and the practice of new values (Lazure, 1973; Marcuse, 1970). The so-called Sexual Revolution was a period marked by advocating for sexual rights and major legal transformations. However, despite the series of changes in the twentieth century, it is still relevant to discuss sexual morality today.
Did individual rights replace moral values?
Europe During the First Sexual Revolution
In the first quarter of the twentieth century in Europe, revolutionary ideas radically called into question the capitalist system and patriarchal society. Many social movements advocated for a liberalization of morals and access to rational, scientific information about sexuality (Tamagne, 2000). In various domains, instructors, doctors, and activists vindicated sexual rights: among them, Austrian physician and psychoanalyst Sigmund Freud (1856-1939), French ethicist and jurist René Guyon (1876-1963), British physician and sexologist Henry Havelock Ellis (1859-1939), German physician and sexologist Magnus Hirschfeld (1868-1935), feminist Russian revolutionary Alexandra Kollontai (1890-1974), and German physician and psychoanalyst Wilhelm Reich (1897-1957). Below is an overview of the ten-point platform proposed by the World League for Sexual Reform, which was active from 1928 to 1935, and reached 190,000 members in 1932:
Differentiation between crime and vice: the former—as anti-social—being an object of the law; the control of the latter—as a personal problem—being an object of education.
However, these progressive ideas were not accepted unanimously. The rise of fascism, Nazism, and the outbreak of war between the nations contributed in various ways to put a stop to societal debates over values and ways of experiencing sexuality.
At this time as well, Pope Pius XI responded by opposing the popular and intellectual challenges to morality in an encyclical issued December 31, 1930, Casti connubii, which defended a conservative interpretation of the Catholic dogma.
According to him, Natural Laws, created by God, justify the sacred character of marriage which was instituted by Him and not by humans—and implied indissolubility of the union, absolute faithfulness, procreation without contraceptive limitations, and love without concupiscence. Wives cannot refuse what is due to their husbands. The aim in marriage should be for “man and wife [to] help each other day by day in forming and perfecting themselves in the interior life” (Pius XI, 1930). The “order of love […] includes both the primacy of the husband with regard to the wife and children, the ready subjection of the wife and her willing obedience” (Pius XI, 1930): the husband is the head, and the wife, the heart, in the marital relationship.
The French jurist René Guyon (1929-1938) also formulated a rationalist sexual ethics in the 1930s (In Quebec, this work had no resonance). Like most contemporary sexologists, Guyon associated reason with progress, in the tradition of the Lumières (Foucault, 2001; Kant, 1975, 1991).
According to him, a rational—i.e. scientific—approach, detached from religious moral teachings, would bring about sexual emancipation. As an ethicist, Guyon emphasized the freedom of the individual, a divorce from the anti-sexual moral, and a right to live one’s sexuality naturally. He was the first author to develop a rationalist sexual ethic based on liberalism. Structured around the idea of consent, which should be free from constraints, deceit, or violence, his well-structured argumentative ethical theory aims to teach the importance of individual rights in sexual morality (Lemay, 1979).
Religious morality presents a deontological approach to sexuality—a set of duties, obligations, and rules to strictly regulate the behaviour of people.
The Révolution Tranquille and the Sexual Revolution
Between 1960 and 1966, the Parti libéral du Québec (PLQ) came to power in Quebec, led by Jean Lesage. Over this short period, Quebecois society underwent a series of radical transformations on institutional, economic, and moral levels. For most historians, the Révolution Tranquille shapes the 1960s and 1970s by bringing about a secular culture centered on notions of liberty, autonomy, and independence, which were at the heart of political, social and personal culture, and which influenced sexual and moral behaviour. (Desaulniers 1997; Dorais, 1986; Lamonde, 2016). The Church’s loss of influence liberated people from the traditional constraints and limits that governed sex (Larouche, 2001; Lazure, 1975).
What ensued was questioning the justifications and legitimacy of sexuality and sexual freedom. People also reflected on the right to sexual freedom, erotic pleasure in relation to age, erotic orientations, relationship models, mental health, physical and intellectual disabilities, etc.
Public and private deliberations about sexuality did not just concern values anymore, but also individual rights and techniques for erotic pleasure.
The Feminist movement played a huge role in this sexo-cultural and political revolution, mediatized through associations, spokespersons, publications, documentaries, and films. Feminism strove to show that there is no valid scientific or religious tenet that could determine the nature or essence associated with sex, which could justify associating qualities, function (other than biological), values, or end (Azâd, 1985; d'Eaubonne, 1977; de Beauvoir, 1970, 1971; Firestone, 1972; Millett, 1971; Sanday, 1981; and others). These perceptions shaping gender identity are only cultural, historical constructions that become associated to genital organs. Questions and answers about what a real man or woman is only lead to subjective conceptions and experiences, and to well ingrained cultural constructions—or to conceptions about human nature where qualities, virtues, and faults are not gendered. To avoid double standards, a new sexual morality has to integrate the notions of equality and freedom.
However, the rationalization and normalization of sexuality that occurred with the abandonment of religious dogma rather led to legal normativity around these matters, assuming a recognition of rights and liberties.
In July 1968, the House of Commons passed a new law allowing women to file for divorce under the same legal conditions as men. That year, there was a staggering rise in the number of divorces: 11,030 cases were opened in Montreal between July 1968 and September 1970.
In May 1969, the House of Commons amended the Criminal Code to adapt it to the social context and contemporary values, decriminalizing therapeutic abortions, the distribution and sale of contraceptives, as well as certain sexual practices (identified in the Criminal Code as “sodomy” and “gross indecency”) generally associated with masculine homosexuality. This created a net distinction between a crime—according to the norms of civil society—and a sin—in the eyes of religious conscience. At this point, the Law permitted heterosexual intercourse for consenting individuals over 16 years old, and homosexual intercourse for consenting individuals aged over 18.
A long struggle to liberalize abortions—to make them accessible and free, without needing to grant justification for it to be a “therapeutic” procedure—began in the 1960s and went until 1988. On January 28 1988, the Supreme Court ruled that Article 251, criminalizing abortions, violated women’s fundamental rights to physical and emotional integrity (R. c. Morgentaler, 1988).
Slowly but surely, over the course of the 1980s and 1990s, the Law became the reference for sexual morality.
On June 28, 2005, a parliamentary vote passed when 158 Canadian MPs (against 133) voted to approve Bill C-38 (against 133), legalizing marriage for same-sex partners. That same year on December 21, the Supreme Court ruled that partner-swapping, if practiced in private with the free consent of participants, was not an illegal act.
The changes can be seen simply as the replacement of one heteronomy with another: a norm that was formerly religious is transferred to the realms of jurisdiction.
In this perspective, codes of conduct are not made by individuals, i.e. the moral agents, but rather imposed by an external, social institution, a political, legal, constitutional body.
But at the same time, these changes bear witness to a clear secularization of morality through democratic and legal channels: norms are set according to the demands of the citizens they concern, and function as regulatory markers of values and contemporary conceptions of love, conjugality, family, eroticism, and sexuality. In any case, the basis of morality seems to have shifted—from a transcendental and metaphysical philosophy to a rational, legal-political norm.
The Divine Principle of Mutual Consent
Another primordial concept comes out of the practices around legal rights: that of mutual consent. In other words, according to laws regarding individual rights and freedoms and to the principle that the government should not interfere in partners’ private lives, the act of agreeing is enough to make a sexual act socially and morally acceptable. Many tensions and conflicts arise from this concept of mutual consent, however, related to a particular conception of liberalism—libertarianism (Borrillo and Lochak, 2005; Cayla, 2005; Marzano, 2006).
Philosopher Ruwen Ogien led the way establishing the new libertarian sexual norm, with consent as its fundamental value. The freedom of choosing what is best for oneself thus became primordial. Ogien developed three principles to give a backbone to this principle of individual sexual self-determination: the principle of equal consideration (every individual choice has the same value), the principle of neutrality (of the State and of other individuals, with respect to particular conceptions of ‘good’), and the principle of limited intervention (intervention is only justified in cases of blatant harm) (Ogien, 2007).
One could note that this particular moral philosophy based on consent, which is valid as long as no harm is caused to anyone, discards the need for rational justification regarding human dignity, responsibility, or vulnerability of the Other. Ogien in fact argues that the notion of human dignity, whether it is used by pro-sexuality or anti-sexuality moralists, rather serves political interests than any transcendental philosophical argument: “It is possible that the argument requiring to protect human dignity is more political than ethical or conceptual” (Ogien, 2007).
For defenders of the minimalist or libertarian moral system, consent has fashioned its place as the new norm, supporting the value of individual freedom (Cayla, 2005).
Is this to say that, in a society of pluralism and tolerance, where individual freedom is virtually considered the absolute fundamental value, any type of sexual activity is valid and legitimate, as long as it doesn’t involve intentional or direct harm?
Morality appears to be confined to its most simple legal-political expression: an elementary state of individual freedom, with no direct or intentional nuisance to others.
For Guyon and Ogien, morality is a socially-imposed constraint to individual freedom.
They both claim that each person’s own right to decide what is best for them in regard to sexuality is most important. A particular, legal norm therefore applies above all others in the field of interpersonal relations: the prohibition to do harm unto others directly, immediately, or intentionally. It thus comes down to the simple socio-political principle of non-aggression.
These days, we do not question whether a particular sexual behaviour is good or bad, but rather whether it is allowed or prohibited by law: everything that is not legally prohibited is allowed.
We will see in the second part of this article that according to judges of the Supreme Court, Canadian morality guides the interpretation of laws; which brings back the ethical dimension of sexual conduct. In the second part, I will present the sexo-ethical approach that dynamically ties together morality and ethics.