Pornography, Pragmatism, and Proscription
| Published date | 01 September 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00470.x |
| Date | 01 September 2009 |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 3, SEPTEMBER 2009
ISSN: 0263-323X, pp. 327±51
Pornography, Pragmatism, and Proscription
Clare McGlynn* and Ian Ward**
The Criminal Justice and Immigration Act 2008 criminalizes the
possession of extreme pornography, namely, images of bestiality,
necrophilia, and life-threatening or serious violence, and is the
immediate context for this article which seeks to present a pragmatic
liberal humanist critique of pornography regulation. Such a critique,
derived in particular from the writings of Nussbaum and Rorty,
presents an alternative case for regulation, eschewing the visceral
competing fundamentalisms which characterized the `porn wars' of the
1980s and 1990s. Whilst moral and epistemological philosophers
squabble with radical feminists and radical libertarians, extreme
pornography can nurture real injusti ce and ruin real lives. A
pragmatic liberal humanism demands a pragmatic response to extreme
pornography. The first part of this article will revisit the longer history
of the `porn wars'; the second describes the parameters of a pragmatic
liberal humanist critique; the third examines the shorter history of
pornography regulation written into the provisions now enacted in the
2008 Act.
The debate regarding the legal regulation of pornography has waxed and
waned: burning fiercely for much of the 1980s, all but eclipsed for parts of
the 1990s.
1
Today, this debate is beginning to sharpen once again, given an
327
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Durham Law School, Durham University, 50 North Bailey, Durham
DH1 3ET, England
clare.mcglynn@durham.ac.uk
** Newcastle Law School, Newcastle University, Newcastle upon Tyne
NE1 7RU, England
ian.ward@ncl.ac.uk
We should like to thank Erika Rackley for her insightful discussions on many of the
issues raised in this article and the anonymous referees for their helpful comments on an
earlier draft.
1 For an expression of this sense of weariness, see A. Carse, `Pornography: an uncivil
liberty?' (1995) 10 Hypatia 155.
immediate impetus by the enactment of new provisions in the 2008 Criminal
Justice and Immigration Act designed to criminalize the possession of
images of `extreme pornography'. Such regulation, as we shall see, is the
subject of considerable vexation, one where the intellectual mist rapidly
reddens. Of course, few claim that pornographic imagery should remain
beyond any regulation. There is a line in the sand, a point at which the vast
majority agree that something must be done; images of sexual child abuse
can be found at such a point. And once that line is drawn, then the question
no longer becomes that of whether we should regulate, but simply what
should be regulated, how it might be best regulated, and how such regulation
might be most convincingly justified. The purpose of this article is to
address, in particular, this latter question. In doing so, it will present a
distinctive liberal humanist defence of pornography regulation, one which
draws on the particular writings of Martha Nussbaum and Richard Rorty.
I. PORNOGRAPHY: THE CLASH OF FUNDAMENTALISMS
A liberal humanist perspective is presented as an alternative to the existing
debate inherited from the so-called `porn wars' of the 1980s and early
1990s.
2
For reasons of better comprehension, this debate can be triangulated:
a clash of three competing fundamentalisms, the moral conservative, the
radical feminist, and the classical liberal.
3
We must revisit each in turn,
before outlining a liberal humanist approach.
1. Moral fundamentalism
The first fundamentalism, what Joel Feinberg termed `moralistic paternal-
ism', has tended to proclaim deep historical roots.
4
In the popular perception,
it is often associated with Victorian `values'; even though, as Lisa Sigel has
recently confirmed, pornographic imagery was just as commonly found in
the mid-nineteenth century gentleman's drawing room as it is today.
5
More
328
2 For an earlier plea to move beyond the `stark dichotomous choice' which the porn-
wars presented, see E. Jackson, `The Problem with Pornography: A Critical Survey
of the Current Debate' (1995) 3 Feminist Legal Studies 49.
3 The same essential triangulation was noted by Jackson, id., pp. 51±2. For the
supposition that there is here a clash of `fundamental' political and jurisprudential
principles, see I. Maitra and M.K. McGowan, `The Limits of Free Speech:
Pornography and the Question of Coverage' (2007) 13 Legal Theory 42.
4J.Feinberg, `Pornography and the Criminal Law' in Pornography and Censorship,
eds. D. Copp and S. Wendell (1983) 133.
5 See L. Sigel, Governing Pleasures: Pornography and Social Change in England
1815±1914 (2002) 1±13 and, also, M. McIntosh, `Liberalism and the contradictions
of Sexual Politics' in Sex Exposed: Sexuality and the Pornography Debate, eds. L.
Segal and M. McIntosh (1992) 165.
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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