Pornography Debate

Suppose one accepts MacKinnon and Dworkin's suggested

statutory definition of pornography. How does one who

generally accepts MacKinnon and Dworkin's views on the

pervasively harmful effect of pornography, and who accepts a need

for legal redress of the harms perpetrated by pornography, deal

with pornographic material?

The ordinance proposed by MacKinnon and Dworkin would deal

with such material by enacting legislation which gives people

adversely affected by the works, which clearly fit their

definition of pornography, a cause of action against the

producers, vendors, exhibitors or distributors for

"trafficking", or for an assault "directly caused by the

specific work.

I do not think liberals, or others for that matter, should

have much problem with the clause dealing with assault, since a

causal connection to specific works is demanded by it. However,

s. 3.2(iii) which deals with trafficking would be very

problematic for liberals and legal conservatives because it

creates a cause of action for a person contrary to the

traditional conception of a rights holder's cause of action.

This subsection reads:

Any woman has a claim hereunder as a woman acting

against the subordination of women. Any man, child or

transsexual who alleges injury by pornography in the

way women are injured by it also has a claim.

[emphasis added]

My goal in this paper is to suggest that a slight

modification to this subsection of the ordinance would make it

very difficult for liberals and legal conservatives to object to

it. This modification would restrict the cause of action to the

same persons as the other sections of the ordinance, namely, the

particular victim of the specified injury. I shall argue that

such a modification would largely cohere with the conception of

harm already at work in Ontario law, would afford only a minor

reduction in the potential efficacy of such legislation in

curbing the harm of pornography, and would offer to empower the

feminist camp which is behind such an ordinance with a mechanism

for social and political change if a sufficiently organized

feminist "vanguard" took hold of the opportunity to empower

women.

Adrian Howe argues that the concept of social injury which

may be suggested by the ordinance recognizes the differential

harm felt by women from pornography. Howe suggests this social

notion of harm may be a necessary feature of any successful law

reform which is to address the huge social problem of male

domination and female oppression. The liberal notion of an

individuated human right fails to capture, for MacKinnon and

Howe, "the specificity of the harm to women." Thus, an

ordinance which did not create a cause of action "for women as

women" would fail to address the root of the social problem of

which pornography is a manifestation.

This conception of social harm, and thus subsection

3.2(iii), may offend liberals or legal conservatives in two ways.

First, the notion of non-individuated harm is antithetical to the

liberal conception of a rights holder claiming a cause of action.

Fundamental to a liberal conception of harm is the notion of the

individual who is autonomous, separate and fundamentally worthy

of respect. Rawls and Kant exemplify this view in their analyses

when they posit the undifferentiated self, free of any particular

qualities save that of being an agent worthy of a fundamental,

inviolable respect. This notion of the individual worthy of

equal concern and respect in the eyes of the state permeates

liberal conceptions of rights. It is also a fundamental, if not

exclusive, tenet of the common law of torts:

In tort litigation, the courts must decide whether to

shift the loss suffered by one person, the plaintiff,

to the shoulders of another person [emphasis added].

Clearly, on its face this conception of harm precludes the

notion of a harm suffered collectively which cannot be delineated

individually. While class actions are possible, and claims may

be made on behalf of groups such as company shareholders, this is

only by virtue of the fact that a legally recognized individual

has suffered

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