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Pornography and Public Reason

Published online by Cambridge University Press:  09 June 2015

David Dyzenhaus
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Liberalism is often identified with the claim that individuals should have a large space for decisionmaking into which the state is not morally justified to intrude. On this “negative liberty” conception of liberalism, the boundaries of that space are or should be set by a package of rights against the majority. Individuals can appeal to such rights to override majority decisions that seek to intrude into the space of negative liberty. If this space of negative liberty is preserved, for example, through courts empowered to strike down infringing laws, such liberals suppose that a fundamental interest of all individuals is served. This is the interest in autonomy, in being able to make, revise and carry out decisions about how to live in accordance with one’s own preferences.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 2 , July 1994 , pp. 261 - 281
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1994

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References

I thank Andrew Kemohan, Cheryl Misak, Arthur Ripstein, Kent Roach, and Christine Sypnowich for their comments on drafts of this essay. Special thanks are due to Madison Powers for a barrage of objections which I have tried (I know inadequately) to meet. Unfortunately, comments by Hamish Stewart and Tom Hurka reached me to late to be taken into account.

1. For an analysis of pornography as an expressive act, see Langton, Rae, “Speech Acts and Unspeakable Acts” (1993) 22 Phil. & Publ. Affairs 293.Google Scholar This essay takes further the argument she made in “Whose Right? Ronald Dworkin, Women and Pornographers” (1990) 19 Phil. & Publ. Affairs 311. My focus differs from hers in both these essays, since my primary interest is in the link between neutrality and negative freedom and between what I call below the dilemma of autonomy and public or democratic reason.

2. Within the liberal camp some now argue that liberalism does not require global neutrality: for example, Raz, Joseph, The Morality of Freedom (Oxford: Oxford University Press, 1986);Google Scholar Galston, William A., Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991);CrossRefGoogle Scholar and see Goodin, Robert E., & Reeve, Reeve, eds., Liberal Neutrality (London: Routledge, 1989).Google Scholar I do not explore the implications of such positions here.

3. Berlin, Isaiah, “Two Concepts of Liberty” in Four Essays on Liberty (Oxford: Oxford University Press, 1969) at 131–34.Google Scholar

4. Dworkin, Ronald, “Two Concepts of Liberty” in Edna, & Margalit, Avishai, eds, Isaiah Berlin: A Celebration (Chicago: University of Chicago Press, 1991).Google Scholar

5. Supra note 3 at 167.

6. For an argument that Mill’s liberalism is surprisingly sympathetic to the pro-censorship feminist case sketched below, see Dyzenhaus, David, “John Stuart Mill and the Harm of Pornography” (1992) 102 Ethics 534.CrossRefGoogle Scholar

7. Dworkin, Ronald, “What Rights Do We Have?” in Taking Rights Seriousl (London: Duckworth, 1977) 266 at 272.Google Scholar

8. See, for example, Dworkin, Ronald, “What is Equality? Part 4: Political Equality” (1987) 22 U. San Francisco L. Rev. 1.Google Scholar

9. See Taylor, Charles, “Cross Purposes: The Liberal-Communitarian Debate” in Rosenblum, Nancy L., ed., Liberalism and the Moral Life (Cambridge, Mass.: Harvard University Press, 1989) 165.Google Scholar

10. Taylor, Charles, “What’s Wrong with Negative Liberty” in Philosophical Papers, vol. 2, Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985) 211.Google Scholar

11. Ibid. at 228–29.

12. Supra note 4. The label “pro-censorship” is of course controversial. To adopt it might seem to involve aligning oneself with the liberal camp which worries about censorship when the feminists whom I so label are concerned not with censoring anything, but with the inequality of women. But since this feminist position does result in censorship, it is better, I believe, to meet liberal concerns about censorship head-on. Moreover, resistance to this label seems to me driven by the same double effect argument which I reject below and which should, for the same reasons, be rejected here.

13. This may not of course be Taylor’s understanding, although I think it is faithful to his critique of liberalism.

14. Berlin seems at times to suppose that one is on the path to final solutions as soon as one starts to talk about an individual interest in autonomy. See supra note 3 and note 5.

15. See, most notably, MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987).Google Scholar

16. Supra note 4 at 104–06.

17. Ibid. 106–07, referring to the opinion in American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

18. Supra note 4 at 107.

19. Michelman, Frank, “Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation” (1989) 56 Tenn. L. Rev. 291.Google Scholar

20. Supra note 4 at 108.

21. Ibid. at 106–07.

22. See Devlin, Patrick, The Enforcement of Morals (Oxford: Oxford University Press, 1965)Google Scholar and Dworkin, Ronald, “Liberty and Moralism” in Taking Rights Seriously (London: Duckworth, 1977) 240 at 255.Google Scholar

23. Dworkin, ibid. at 248–53.

24. Feinberg, Joel, The Moral Limits of the Criminal Law, vol. 4, Harmless Wrongdoing (Oxford: Oxford University Press, 1990) at 47–48.Google Scholar

25. Supra note 4 at 107.

26. Supra note 19.

27. See Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977)Google ScholarPubMed and Dworkin, Ronald, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986).Google Scholar

28. For my own defence of Dworkin on this issue, see Dyzenhaus, David, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford: Oxford University Press, 1991).Google Scholar

29. Mackie, John, “The Third Theory of Law” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984) 161 and Dworkin’s reply to Mackie at 272.Google Scholar

30. Notice that one position in political theory with which legal positivism has a long association is the liberal position which gives absolute priority to negative liberty. The role of the state for those who hold this position is just to police the boundaries of negative liberty. An essential means of achieving this end is to enact law that demarcates the boundaries so clearly that, particularly in respect of the criminal law, one can usually tell what law is by a purely factual and publicly accessible inquiry. See, Hayek, F.A., Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (London: Routledge & Kegan Paul, 1982).Google Scholar Of course, positivism has also been associated by those who take their inspiration from Jeremy Bentham with a project which aims to establish a radical democracy.

31. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch.11.

32. R.S.C. 1985, ch. C–46.

33. R. v. Keegstra (1991), [1990] 3 S.C.R. 697, 1 C.R. (4th) 129 [hereinafter Keegstra cited to C.R.]. The majority was made up of four judges. Three judges joined in a dissent.

34. Ibid. at 179.

35. R v. Butler, [1992] 1 S.C.R. 452, 70 C.C.C. (3d) 129 [hereinafter Butler cited to C.C.C.].

36. Ibid. at 156 and 159. In a quick, negative reaction to the decision, Dworkin fails to take into account the fact that Sopinka J.’s judgment is put explicitly on the basis of equality. He asserts that the judgment turned on the claim that pornography should be censored because it is offensive: see Dworkin, Ronald, “The Coming Battles over Free Speech” New York Review of Books (11 June 1992) 55 at 61.Google Scholar Similarly, in his most recent essay on this topic, this time a review of MacKinnon, Catharine A., Only Words (Cambridge, Mass.: Harvard University Press, 1993),Google Scholar Dworkin seeks to answer directly the egalitarian argument for censoring pornography. But he does so by turning that argument into one about offence to women: Dworkin, Ronald, “Women and Pornography” New York Review of Books (21 October 1993) 36 at 41–42.Google Scholar

37. Supra note 35 at 161–62.

38. Ibid. at 162–67

39. Ibid. at 177–78, Gonthie, , L’Heureux, Dubé JJ., relying on Dworkin, “Liberty and Moralism”, supra note 22 at 255.Google Scholar

40. See Law’s Empire, supra note 27, ch. 5.

41. See “Reverse Discrimination” in Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) 223–39Google ScholarPubMed and Langton, “Whose Right? Ronald Dworkin, Women and Pornographers”, supra note 1.

42. James, William, “The Will to Believe” in The Will to Believe and other Essays in Popular Philosophy (Cambridge, Mass.: Harvard University Press, 1979) at 29 Google Scholar as quoted by Hilary, Putnam, “A Reconsideration of Deweyan Democracy” (1990) 63 U.S.C. L. Rev. 1671 at 1690.Google Scholar

43. Gutmann, Amy, & Thompson, Dennis, “Moral Conflict and Political Consensus” (1990) 101 Ethics 64.CrossRefGoogle Scholar

44. Dworkin, Ronald, “Do We Have a Right to Pornography?” in A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985) 335.Google Scholar

45. Ibid. at 353.

46. Ibid. at 358.

47. That is, any speech acts other than those which occur in contexts which result in the acts being a “clear and present danger.”

48. cannot discuss in any detail here Dworkin’s recent treatment of the concern part of the right to equal concern and respect: Dworkin, Ronald, “What is Equality? Part 3: The Place of Liberty” (1987) 73 Iowa L. Rev. 1. There, at 35–36,Google Scholar Dworkin puts forward a “principle of authenticity” which is meant to protect the individual interest in autonomy: “Ideal authenticity requires the fullest possible opportunity [for choice] not because people are always more likely to make wise choices with more time but because their choices should not depend on a view of their personality, and of the personalities of others, with whose formation they remain dissatisfied.” This principle, he asserts, by itself justifies a right to complete freedom of expression

But the pro-censorship feminist argument is about the role of pornography in ensuring that women’s choices depend on a male view of their personality. As Gerald J. Postema points out, Dworkin’s approach to authenticity seems to ignore the fact that the market, rather than merely registering and measuring exogenously determined preferences, itself shapes its participants’ preferences: Postema, Gerald J., “Liberty in Equality’s Empire” (1987) Iowa L. Rev. 55 at 86–88.Google Scholar

49. See “Reverse Discrimination”, supra note 41 at 239.

50. Thus their complaint has as much force when the law aims to regulate expression by confining it to the private on the basis of an offence principle. Pro-censorship feminists have an even stronger objection to regulation of pornography on the basis of the offence principle. It is that in confining pornography to the private, one legitimates its consumption in the very domain in which much of women’s subjection to men is acted out.

51. Supra note 44 at 363.

52. This point provides the required rebuttal to Dworkin’s claim that the state may legitimately act only on the basis of “personal preferences”—preferences for how individuals want themselves to live—and not on the basis of “external preferences”—preferences one has for how other individuals should live: see supra note 7 at 275–77. That is, censorship of pornography is ruled out because it is based on external preferences about the worth of the way of life of men who want to consume pornography. For the preferences here are internal preferences for patriarchy; but patriarchy is a way of life which imposes severe external costs on women’s interest in autonomy: see Langton, “Whose Right? Ronald Dworkin, Women and Pornographers”, supra note 1. When the effect of such personal preferences is of this kind, they cannot be dealt with except by a judgment as to the worth of the preferred way of life. What makes that judgment potentially a legitimate one is its basis in the connection between equality and autonomy.

53. I will not attempt to comment on the implications of the claim that the values are incommensurable rather than competing.