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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 ..
behalf as a woman, the modified ordinance has arguably created a
law which is unlikely to be pursued. This is because the women
most likely to succeed are the least likely to proceed - they
either will not possess sufficient power in their situation of
subjugation, or they will not recognize the harm since for them
it is normalized, adopted, accepted.
It is probably true that the ordinance will not turn upside-
down the subjugation of women simply by offering remedies to
indiv
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