Philosophy 220

1. Rights-Based Moral Theories and Pornography Philosophy 220

2. Adding to Our Vocabulary • A common moral concept that we have not yet considered is the concept of a Right: a legal or moral claim (entitlement) to do or refrain from doing something or to choose or not choose to have something done to them. • The ethical category of rights addresses situations when an individual’s well being is vulnerable to the activity of others (individuals or institutions). • Rights serve to protect the vulnerabilities of individuals. • Example: Right to Free Speech.

3. Rights Based Theories • Rights Based Moral Theories hold that rights form the basis of obligations because they best express a key purpose of morality: the securing of liberties or other benefits from rights holders. • The PRC for RBT insists that, “An action is right iff (and because) in performing it either (a) one does not violate the fundamental moral rights of other, or (b) in cases where [there are conflicting rights, the most important are protected]” (p. 22).

4. Different Concepts of Rights • Given the proximity of the concept of rights to the concept of freedom, it should not be surprising that a distinction we recognized (with Kant’s help: between negative and positive freedom) as operating in the latter also operates in the former. • A negative right is a valid claim to liberty, and a negative obligation requires that we not interfere with the obligations of others. • A positive right is a valid claim to a good or service and positive obligation requires that a person, organization, or state provide such goods or services.

5. Criticisms of Rights Theories • One common criticism of RBTs points to the proliferation of rights. • Construed merely negatively, rights seem to be limited, but when we consider the range of positive rights, their number expands considerably. • Another common criticism points to the apparently inevitable conflict between rights. • The issue becomes how to adjudicate between these conflicting claims. • Key notion in RBTs is thus moral judgment: “skill at determining what matters most (morally speaking) and coming to an all things considered moral verdict” (p. 23).

6. Dworkin, “Liberty and Porn” • Like Strossen, Dworkin argues against censorship of pornography, but rather than focusing on consequentialist concerns about effectiveness, Dworkin uses the distinction between negative and positive rights. • Specifically, he responds to arguments that would characterize pornography as interfering with the positive rights of women (to equality of consideration, for example), by insisting that the negative right to free speech trumps such claims to positive rights.

7. Berlin on Negative and Positive Liberty • Dworkin makes use of a famous speech by Isaiah Berlin in which Berlin rehearses the distinction we’ve already discussed between negative and positive liberty (freedom). • On Berlin’s take on the distinction is between freedom of action (negative) and freedom of participation (positive). • There are two features of Berlin’s discussion that Dworkin emphasizes: • That the concept of positive liberty is susceptible to paternalistic misuse. • That the two types of liberty are susceptible to conflation and that we should not assume that they exhaust our politically and morally relevant concerns.

8. Dworkin v. MacKinnon • Dworkin puts Berlin’s observations to work in a criticism of an Indianapolis antipornography ordinance sponsored by Catherine MacKinnon and a coalition of other feminists. • As Dworkin highlights, the ordinance adopted lacked an artistic exception and didn’t merely try to restrict individuals’ negative liberty, but completely banned pornographic materials. • Dworkin reviews the legal wrangling over the ordinance with its finding that the ordinance was unconstitutional. A central element of that finding was that there was no evidence of harm sufficient to warrant the ban.

9. Another Harm? • Supporters of this type of legislation have argued that the type of harms referred to by Dworkin and critically evaluated for us by Strossen do not exhaust the harms offered to women by pornography. • A harm that is missed by this analysis is the harm done to women’s positive right to participate on equal footing with men in the social, economic and political spheres. • It does so by subordinating women to traditional, sexually defined roles, limiting them to the role of mere objects of male interests.

10. This is Serious • Dworkin take this argument very seriously. • As he points out, it cannot merely be rejected by asserting the primacy of rights over other social or moral values. • It is a conflict within the sphere of rights itself, and required adjudication.

11. Is it Plausible? • Of course, though this is a Rights Based argument, it retains consequentialist elements. • As always, we have to evaluate the causal connection upon which the consequentialist claims are based. • Dworkin insists that the claimed connection between porn and social/political subordination seems a bit stretched.

12. Too quick? • Before we accept Dworkin’s reading of this matter, let’s briefly consider Hill’s piece on “Degradation.” • Employing the now familiar Humanity Formulation of the CI, Hill defines degradation as public or overt treatment of a person as a means only, the false imputation to a person or group of a lower moral status than is typically accorded (116c1). • Ask yourself, is it the case that women in pornography are typically treated or depicted in a degrading way?

13. The Final Analysis • Dworkin could well accept the characterization of pornography as degrading. • His argument is ultimately that the centrality of the negative right to free speech to our democratic form of life is more important than this sort of claim to positive liberty. • That doesn’t mean that we don’t have a duty to struggle against the inequalities women suffer, just that censorship isn’t the appropriate weapon for the struggle.