Mackinnon and Dworkin's Views on the Harmful Effects of Pornography

Topics: Tort, Common law, Law Pages: 13 (5285 words) Published: January 23, 2000
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...
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