Would John Stuart Mill have Regulated Pornography?
| DOI | http://doi.org/10.1111/j.1467-6478.2014.00683.x |
| Published date | 01 December 2014 |
| Author | Clare McGlynn,Ian Ward |
| Date | 01 December 2014 |
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 4, DECEMBER 2014
ISSN: 0263-323X, pp. 500±22
Would John Stuart Mill have Regulated Pornography?
Clare McGlynn* and Ian Ward**
John Stuart Mill dominates contemporary pornography debates where
he is routinely invoked as an authoritative defence against regulation.
This article, by contrast, argues that a broader understanding of Mill's
ethical liberalism, his utilitarianism, and his feminism casts doubt over
such an assumption. New insights into Mill's approach to sex, sexual
activity, and the regulation of prostitution reveal an altogether more
nuanced and activist approach. We conclude that John Stuart Mill
would almost certainly have accepted certain forms of pornography
regulation and, in this light, we argue that Mill can provide the
foundation for new, liberal justifications of some forms of pornography
regulation.
INTRODUCTION
In discussions over the regulation of pornography, the name of John Stuart
Mill is ubiquitous. As a figure, he loomed large in twentieth-century debates,
with his `harm principle' taking centre stage in the British Report on
Obscenity and Film Censorship published in 1979.
1
More than three decades
on, with pornography again a contentious topic of public debate, his name
500
*Durham Law School, Durham University, Palatine Centre, Stockton Road,
Durham DH1 3LE, England
clare.mcglynn@durham.ac.uk
** Newcastle Law School, Newcastle University, Newcastle upon Tyne, NE1
7RU, England
ian.ward@ncl.ac.uk
Clare McGlynn gratefully acknowledges the support of a Leverhulme Trust Research
Fellowship which enabled this research to be conducted. Thanks are also due to seminar
participants at the Centre for Feminist Legal Studies, University of British Columbia, for
their helpful comments on an earlier version of this article, and to Judith Evans for her
valuable research assistance.
1Report of the Committee on Obscenity and Film Censorship (1979; Cmnd. 7772;
chair, B. Williams) (the Williams Report).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
continues to be deployed as an authoritative defence against regulation.
However, his ubiquity is paradoxical. While Mill was a prolific writer on an
extensive range of issues, including marriage, spousal abuse, parental neg-
lect, and prostitution, he published no work on pornography. This absence is
all the more curious when we recall the contemporary debate surrounding the
adoption in 1857 of the Obscene Publications Act. Why was Mill not moved
to protest against this rather obvious statutory restriction on freedom of
speech?
In the absence of any written views, we are left to infer what Mill might
have recommended in relation to pornography regulation from his other
published work and activities. And there has been no shortage of inferences,
most of which suggest that Mill would have been against the regulation of
pornography. In this article, we challenge such assumptions, arguing that
there is a considerable amount of evidence to suggest that he would not only
have countenanced, but might also have recommended, a necessary measure
of regulation.
2
To make this argument, the first section of the article examines Mill's On
Liberty and the legacy of his famous `harm principle' in the context of
current pornography debates. The second situates Mill's approach to the
regulation of sex and sexual activity within his broader moral and political
philosophy. Moving beyond the specific consideration of `key' texts, this
section emphasizes the role played by his ideas of `moral character' and the
`higher pleasures'. The third section considers the extent to which his ideas
and social activism were informed by his feminism ± a feminism which was
far more radical in its meanings and implications than has often been
suggested. This radical, liberal feminism sets the scene for section four
which provides a fresh analysis of Mill's approach to the regulation of
prostitution, a surprisingly neglected area of his thinking. Such an analysis
provides vital context when considering Mill's possible approach to porno-
graphy in view of the experiences, discourses, and regulatory context com-
mon to both pornography and prostitution. The final section contemplates
the extent to which Mill might, accordingly, have supported current demands
for the closer regulation of pornography. We conclude that Mill would
almost certainly have accepted certain forms of pornography regulation and,
in this light, we argue that Mill can provide the foundation for new, liberal
justifications of some forms of pornography regulation.
501
2 While the boundaries between `adult' and `child' pornography are not as marked as
is often assumed, for pragmatic purposes the focus of this article is on what is
generally labelled as `adult' pornography; namely, material in which the participants
are over eighteen. In relation to definitions of pornography, while always con-
tentious, this article follows that offered in the Williams Report on the basis that it is
well known and understood: first that the function or intention of the material is
sexual arousal and, secondly, that the representation is sexually explicit (id., para.
8.2).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
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