Transcript Rights-Based Moral Theory and Pornography

Philosophy 220
Rights-Based Moral Theories and
Pornography
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.
o
Example: Right to Free Speech.
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. 24).
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.
Criticisms of Rights Theories
• One common criticism of RBTs points to the
proliferation of rights.
o 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.
o 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. 24).
Dworkin, “Liberty and
Porn”
• Dworkin argues against censorship of
pornography using 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.
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:
o That the concept of positive liberty is susceptible to
paternalistic misuse.
o 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.
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.
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.
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 requires adjudication.
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.
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 (155c2).
• Ask yourself, is it the case that women in
pornography are typically treated or depicted in a
degrading way?
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.