Consider the proposition that it is impossible for a legal system to be morally neutral
Among many other issues, the Law regulates abortion, euthanasia, the availability or otherwise of capital punishment for criminal offences, prostitution, and pornography. – all issues on which individuals take a moral stance. Yet the Law is often argued to be morally neutral. Positivist lawyers such as H.L.A. Hart maintain that there is ‘no necessary connection between law and morals’, a position disputed by natural lawyers who insist that some external factors do influence the law, and that since the law is by nature coercive, it is desirable that it have some basis in morality.
Discussions around these theoretical issues may often be perceived to be arcane, grounded in pure theory and of little relevance to the true operation of the law. As Griffith said of the English constitution; ‘the constitution is what happens…. if it works, it’s constitutional.’ The proliferation of primary and secondary legislation seems to indicate that the law is dealing with problems with its operation by increasing its reach; so much of what the law appears to do seems to be ‘stop-gap’ measures rather than considered revisions based on a thorough understanding of the theoretical debates. If the legislators do not consider them, how can such arguments be of relevance to us?
My answer would be that as our understanding of law and of social processes deepens, we begin to see that, underlying our supposedly neutral legal systems and precepts is a received wisdom and a morality which is all the more pervasive for its pretended neutrality. A field of study which has contributed immeasurably to our understanding of critical legal theory is that of feminist jurisprudence. Theorists who, in seeking to discover why the law operates as it does, deconstruct it as far as possible and find the myths understanding some of the most lauded principles of disinterested, neutral law (such as that very visible character, the reasonable man) have enabled us to see the hidden mechanisms which betray the gendered operation of the law and which can create real pitfalls in seeking to regulate morality through law. Such analyses have implications for the application of the law in all areas and for all spheres of interest – for example, legal theorists interested in the application of the law to race and disability, sexuality and religion have all benefited from feminist theories of law.
This essay will seek to examine the contention that ‘it is impossible for the law to be morally neutral’ from a feminist legal standpoint. Since a complete discussion of the law in this respect would be an immense undertaking and beyond the scope of this piece, I shall be considering the question with specific reference to the debate around the regulation of pornography. Of particular interest in this area is the fascinating debate between H.L.A. Hart and Sir Patrick Devlin sparked by the publication of the Wolfenden Report on Homosexual Offences and Prostitution. Their analyses of the desirability of regulating morality are a vital addition to any consideration of this question and will form a large part of my enquiry.
However, I feel that it would be beneficial to first examine the liberal thought which preceded and infuses the modern debate. Hilaire Barnett characterises the liberal approach to pornography as a;
‘form of representation of sex, which, without proof of substantive harm to an identifiable subject, should remain legally unregulated in the interests of individual liberty.’
This requirement of harm before resorting to regulation stems from John Stuart Mill’s ‘harm principle’, first expressed in ‘On Liberty’, published in 1859, which states;
‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.’
The principle has informed the development of the English law and is still often quoted in difficult cases in the higher courts dealing with key questions of morality such as abortion and euthanasia. It is seen as a neutral, dispassionate legal measure facilitating objective discussion of emotive issues – and features largely in the debate on the regulation of morality, particularly that portion of it which deals with pornography. The 1957 report of the Wolfenden Committee on Homosexual Offences and Prostitution adopted it enthusiastically, particularly that portion of it which rejects the idea of regulating to protect people from themselves. They noted that;
‘Unless… the sphere of crime [can be equated] with that of sin, there much remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.’
This device has proved extremely useful in matters of morality, since it maintains the liberal ideal of individual freedom while protecting the public from harmful influences. In the case of the Wolfenden report, the principle supported the status quo – criminalising not prostitutes, but those profiting from prostitution on the grounds that this second category of persons could be causing harm to others; and decriminalising private acts of homosexuality while preserving the public from the immoral influences of their public performance. The principle was also adopted by the Williams Committee which considered pornography, discussed below.
Subsequent to the publication of the Wolfenden Report, Sir Patrick Devlin wrote and published ‘The Enforcement of Morals’, in which he argues that morality is part of the fabric of society and that immoral conduct therefore presents a clear threat, the neutralisation of which takes precedence over individual freedom. ‘The maximum individual freedom that is consistent with the integrity of society’ should be determined based on the ‘intolerance, indignation and disgust’ of ordinary people. This viewpoint has been co-opted by religious and other strongly conservative groups campaigning against pornography on moral groups, with whom the feminist anti-pornography lobby has become an unlikely ally almost by accident.
H.L.A. Hart, a confirmed and dedicated positivist and liberal, disagreed with Devlin in ‘Law, Liberty and Morality’, published in 1963. He argues against fixing the morality of a society by cementing it in place with law, since morality is a social standard which changes as the society changes and develops, ‘consistent not only with the preservation of society but with its advance’. This is not something which must be maintained in the interests of societal integrity but which must be allowed to modulate as society does. Furthermore, in his (classically liberal) view there is a distinction to be drawn the offence caused by immoral acts taking place in public and being witnessed by others, and that caused by the knowledge that immoral conduct takes place in private. This is identifiable as a direct descendant of Mill’s harm principle; that harm to others can and should be regulated, but that the law should not intervene to regulate the private acts of individuals which harm only themselves.
The Report of the Williams Committee agreed and endorsed an essentially ‘Millian’ scheme which concluded that while there was no conclusive proof of harm to consumers of pornography, or to society at large, it was possible that sex workers involves in the production of such films might be harmed, and therefore the law should intervene to protect them where appropriate. Since then, it has been recognised that child ‘actors’ are often used in pornography and statutory measures have been introduced specifically for their protection, in the Protection of Children Act 1978 and the Criminal Justice Act 1988. However, pornography which is not obscene or likely to ‘deprave or corrupt’ is legal under the Obscene Publication Act 1959 and 1964. The current statutory scheme, we see, is based firmly on the ‘harm principle’ and will only criminalise what causes harm to others.
However, the key problem with the ‘harm principle’ has always been that it requires a line to be drawn between what causes harm and should be regulated, and what merely attracts disapproval and rightly belongs to the freedom permitted to the individual in liberal law systems. Applied to pornography, this problem becomes crucial – while proven harm caused by pornography would be a strong case under the harm principle for strict regulation, as Barnett notes, ‘the inescapable difficulty in relation to pornography is evaluating the harm it causes in a meaningful manner’.
She helpfully summarises anti-pornography feminist arguments as follows:
‘Pornography not only defines women as sexual objects for the use of men but also has a relationship with sexual crimes against women. Pornography emphasises male sexual and other dominance and thus maintains and supports gender inequality. Pornography, as analysed by Catharine MacKinnon, is a form of sexual harassment, sexual discrimination and sexual hatred directed against women… [it] denies women an equal voice in society: by the constant portrayal of women as inferior, as objects, women are denied respect and their claims to equality are silenced under a blanket of disrespect…’
However, the problem with these claims is that they are, as Barnett admits, ‘not conclusively established or quantified’. While the evidential problems relating to harm arising from pornography would merit an essay in themselves, a short précis of some of the problems would be valuable here. Andrea Dworkin and Catherine MacKinnon, both vehemently anti-pornography feminists, have advanced harrowing empirical case studies of women harmed by pornography. Other more statistical studies of the behaviour of a small group of subjects after viewing pornography concluded that it often leads to an increase in sexual behaviour, although it is doubtful whether this can be considered to be a harm in itself. However, attempting to prove a connection between viewing pornography and sexual violence against women is a more difficult evidential leap; research by Goldstein et al shows that sex offenders are more likely to have had a repressed childhood than one in which prurient interests were encouraged. Furthermore, another study shows that removing censorship of pornography altogether seems to lead to a drop in sexual crime. Donnerstein and Berkowitz’s research into the effects of viewing violent pornography reported contradictory and inconclusive results, where aggression toward women did increase in some circumstances but men were more likely to come to the aid of a woman in others. Where there was an increase in aggression after viewing violent pornography, they posited a predisposition in the men in question. There are also problems with devising a method of research which will not influence the reactions of its subjects. There is no conclusive research into the effects of pornography on sex workers themselves, and individual testimonies are mixed and in any case subject to criticism as a justification for legal regulation. A Consultation Document prepared by the Home Office and Scottish Executive on the possession of extreme pornography notes that;
‘…conducting research in this area is complex. We do not yet have sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour.’
Despite this, in recent years there has been a growing movement to legislate against the availability and consumption of violent pornography, prompted in part by the trial of Graham Coutts, who was said to have had an obsession with pornography, in 2004 for the murder of Jane Longhurst. A Consultation Document prepared by the Home Office and Scottish Executive;
‘sets out options for creating a new offence of simple possession of extreme pornographic material which is graphic and sexually explicit and which contains actual scenes or realistic depictions of serious violence, bestiality or necrophilia.’
They note that their consideration of changing the law stems from a desire to help both those involved in production of such material, and, crucially,
‘A desire to protect society, particularly children, from exposure to such material, to which access can no longer be reliably controlled through legislation dealing with publication and distribution, and which may encourage interest in violent or aberrant sexual activity.’
I am inclined to view this as a positive step. Although the new report has still required an identifiable victim (Jane Longhurst, and children exposed to extreme pornography) to prompt action, there is a move here to consider the wider societal effects of pornography in spite of the lack of firm statistical evidence.
We can see from the evidence summarised above that establishing a basis for the regulation of pornography under the harm principle is problematic. The harm principle seeks to be as objective as possible, and Hart tells us that it is wrong to set morality in stone by seeking to censor material or activity on purely moral grounds. We therefore seek proof that harm is being caused, to release us from inactivity by providing a victim in whose interests we can legislate.
But how far is this really a morally neutral standard? Feminists argue that this is merely an objective, masculine standard based on ways of establishing cause which have worked for hundreds of years in justifying legislation in the public sphere, which, feminist criticism tells us, has traditionally been inhabited principally by men. Women’s lives are often carried out principally in the private sphere, a shadowy realm on which liberals intrude only reluctantly and which does not provide readily available economic and employment figures. Here, statistical analysis and firm evidence is hard to come by, for many reasons including the reluctance to divulge details about private lives, threatening behaviour by dominant men in private situations, and society’s failure to ask the right questions. By demanding incontrovertible proof of harm, the law is sticking to a masculine standard which, in the final analysis, assumes that women who have chosen to enter the sex industry or relationships with violent men influenced by pornography have done so of their own free will and are therefore not constructed as victims but as free actors. Put bluntly, they have made their bed and are free to lie in it. There is no understanding in this analysis of the wider social and psychological causes of such behaviour and such choices.
I do not intend to argue, in this essay, for a blanket ban of pornography or of the sex industry as a whole. Rather, I seek to establish that the harm principle, which Mill expressed and Hart approved, is not as morally neutral as it appears but, by its operation, reinforces almost Victorian moral assumptions about women’s behaviour. While I cannot agree with Devlin’s conservative and religiously inspired stance, I can see that his wider view on the social cost of such activity is one which bears reconsideration. We need to set aside established principles for a moment and try to think of new ways to look at the notion of ‘harm’, and perhaps more crucially, the notion of ‘victim’. While I cannot aspire, in this essay, to create a truly morally neutral theory of law, perhaps these considerations should inform the efforts of more gifted scholars to do so.
BARNETT, H. (1998) Introduction to Feminist Jurisprudence, London, Cavendish Publishing See BBC (2005), Anti-pornography petition handed to MPs, 23.11.05 BBC News Online website [online], Available at http://news.bbc.co.uk/1/hi/england/4460828.stm [accessed 12.12.05]
DWORKIN A. (1981) Pornography: Men Possessing Women, London: Women’s Press
DWORKIN, G. (1979), Paternalism, in LASLETT, P. & FISHKIN, J. (Eds.), Philosophy, Politics & Society, 5th Series, Oxford, Blackwell
GRIFFITH, J.A.G.  PL 401
HART, H., (1958) “Positivism and the Separation of Law and Morals”, Harvard Law Review, 71 HLR 1958 pp116-145
MCLEOD, I. (2005) Legal Theory, 3rd Edition, London, Palgrave Macmillan
UNDERWOOD, M. (2003) Mass Media: Sex and Violence [online], available at http://www.cultsock.ndirect.co.uk/MUHome/cshtml/index.html [accessed 12.12.05]
THE WOLFENDEN COMMITTEE, (1957), Report of the Committee on Homosexual Offences and Prostitution, Cmd 247, London HMSO
THE WILLIAMS COMMITTEE, (1979) Report of the Committee on Obscenity and Film Censorship, Cmnd 7772, London: HMSO
HOME OFFICE (2005), Consultation: On the Possession of Extreme Pornographic Material, August 2005
Word Count: 2496 excluding bibliography but including quotations
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