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Product Details
| ISBN-13: | 9780226243214 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 04/25/2004 |
| Edition description: | 1 |
| Pages: | 208 |
| Product dimensions: | 6.00(w) x 9.00(h) x 0.70(d) |
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Pornography, the Theory
What Utilitarianism Did to Action
By Frances Ferguson
The University of Chicago Press
Copyright © 2004 The University of Chicago
All right reserved.
ISBN: 978-0-226-24320-7
Chapter One
Pornography, the Theory
In this chapter I undertake an exposition and assessment of Catharine MacKinnon's anti-pornography argument, which asserts that "pornography is central in creating and maintaining the civil inequality of the sexes" and that "pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women." She argues that pornography should not be handled under obscenity law but should instead be treated under the rubric of the civil law that guarantees equality of social access and should be seen as a form of unlawful discrimination. I try to address the various aspects of MacKinnon's argument without being dismissive, but ultimately conclude that only two of MacKinnon's claims are tenable-that pornography ought to be actionable when pornographic performers are injured in the performance of their work and that pornography ought to be actionable when it is used for the purposes of sexual harassment. Sexual harassment, I argue, enables one to identify a situation in which pornography could be used to do harm to an individual by excluding him or her from the groups that are artificially constituted by workplaces and schools. While I accept the portion of MacKinnon's arguments about pornography used for sexual harassment, I disagree with the terms of her explanation. Where MacKinnon affirms that "equality is guaranteed" in the environments of the workplace and the school, I argue that the crucial reason why the workplace and the school are important is that they are public social structures that have assumed a privileged role in capturing the differential value of individual actions through a process of ranking that ultimately distinguishes the value of each individual action from every other. These utilitarian social structures are significant, then, not because they enact equality, but because they aim to create a social objectification for actions by rigorously delimiting them and establishing a basis for comparing one person's actions with another's. Access to that process of ranking and hierarchization is, I argue, a crucial feature of modern society, and even rather contentless representations ought to be seen as "pornographic" when they become the instruments for debarring individuals from those structures that enable persons to see their value increased through the public objectification of their actions. One chief virtue of utilitarian social structures such as the workplace and the school is that they objectify actions and make them discernible-without trying to derive accounts of the value of actions from claims about property rights or previous personal history.
* * *
What does Catharine MacKinnon mean by "pornography"? What account of pornography is she putting forward when, in "Francis Biddle's Sister: Pornography, Civil Rights, and Speech," she writes that pornography is "a practice of sex discrimination" that "combines a mode of portrayal that has a legal history-the sexually explicit-with an active term that is central to the inequality of the sexes-subordination"? What do she and Andrea Dworkin mean to accomplish, and what do they accomplish, by talking of what pornography does rather than of what pornography is? In the essays MacKinnon wrote on pornography in the 1980s, she spoke of "pornography as a practice of sex discrimination" and of "what it does behaviorally." More recently, in Only Words, she speaks continually of pornography in terms that treat it as an action-or a variety of actions-rather than as an object, or a collection of objects. This is a formulation or verbal habit sufficiently interesting to require some examination. We could portray it as simply a matter of rhetorical escalation, a histrionics designed largely for demagogic effect. Or we could render it fatuous by paraphrasing it as a statement that all speech is behavior, thus making pornography look like a subset of language in general and like merely one example among the myriad examples of the operations of prose. The aim of this chapter is to set aside those two dismissive accounts of MacKinnon's position, to examine some of her opponents' arguments, and to locate what I take to be the most interesting aspect of the MacKinnon-Dworkin position, namely, its attempt to suggest a connection between pornography and action that continually demands a revision of the ways in which the law acknowledges and, indeed, formulates action.
There are, however, considerable difficulties that one must engage in advance. First among these is that MacKinnon's opponents continually represent her position as necessarily involving censorship, with censorship being traced through its full pedigree for suppression of dissent. (Indeed, the "feminist anti-censorship" position has made its act of self-naming an implicit characterization of the MacKinnon-Dworkin position; and the free-speech position-whether linked with or uncoupled from feminism-has repeatedly argued that the potential "chilling effect" that would be produced by the enforcement of any civil rights ordinances against pornography would be the functional equivalent of censorship.) Second, there is the problem of MacKinnon's recurrent use of statistical studies as if they indicated clear causal patterns between pornography and imitative crimes including rape and murder. It has been a simple enough exercise to find statistical studies that appear to maintain the reverse. Moreover, leaving aside the studies that seem to acquit pornography in the aggregate, commentators have found it all too easy to make the point that pornography must be a relatively indirect or remote cause of serious crimes against women if pornography is as nearly omnipresent as MacKinnon says it is and if substantial numbers of women nonetheless take themselves not to have been harmed by it. This is as much as to say that although many have claimed that MacKinnon cites only studies overstating the number of rapes and acts of sexual abuse, even her comparatively large numbers are not large enough to make the case for anything like a regular causal connection between pornography and crimes against women.
In the following discussion, I attempt to locate what I take to be a fundamental insight of the argument that MacKinnon and Dworkin, individually and together, have articulated against pornography. I take that project centrally to involve the claim that pornography is only significant insofar as it involves acts-as it puts representations to use. (Moreover, I see that claim as entirely consistent with the assertion that positive uses of pornographic representations are indeed positive and that they would call for no legal action.) In the process of analyzing and defending what I see as the most powerful aspects of this position, I shall also be arguing that neither censorship nor a simplistic claim about pornography directly causing readily predictable instances of extreme violence is central to that position. With regard to the question of censorship, I am not so much arguing a new point as simply recognizing and following the logic that MacKinnon herself has repeatedly laid out. With regard to the question of pornography and behavior, I am proposing a modification of what her position sometimes-perhaps even frequently-appears to be.
Briefly, I see MacKinnon as addressing a central question for modern self-governing societies-namely, how can such societies modify their own tendencies to replicate the power structures that already exist? How can they avoid simply responding to the precedential appeal of the stereotypes that are stereotypes because they come with all the recommendation of existence? However far political thinking may qualify its truth claims to insist upon the impossibility or unavailability of knowledge apart from the conditions of our knowledge, that is, some version of those claims reemerges in the perception of value. Stereotypes are stereotypes because they reflect judgments of value, judgments that have particular force as implicit maxims because they claim the authority of what has been credited over what has not. They represent what has been called-usually with a certain edge-the dividend of membership in certain groups, in recognition of the relative value of advantaged groups; and they carry an analogous penalty as well, in recognition of the relative value of disadvantaged groups.
When feminism has occupied itself with pornography, it has done so because pornography, in its appeal to viewers, clearly emphasizes the issue of evaluation-the value that is placed on a person or a thing in the literal or metaphorical marketplace. The visibility of pornography is thus important not because it involves a tacit claim that visual imagery has an unusual immediacy by comparison with other representational media, but rather because of its obvious orientation toward viewers and their evaluations. It emphasizes individual value as it is assigned, that is, rather than a notion of intrinsic worth (as it might be postulated by an abstract account of individualism) or a notion of self-worth (as it might be postulated by someone's constituting him- or herself as an ideal market or audience for him- or herself).
Adherents of a variety of political perspectives are willing to grant a value to what has been credited, but they draw widely different conclusions about the proper way of recognizing it. On the one hand, an essentially libertarian view affirms that experience continually ratifies existing distributions of power and that efforts to counteract the ratifications of daily experience are at best pointless. On the other hand, classical liberalism has frequently been seen as enunciating a strong argument for individuals as political equals that tries to offset the value of what has already been credited by suggesting its contingency, the possibility of things having been different from what they in fact were. As critics of classical liberalism have repeatedly suggested, however, seeing the essential or potential equality of conspicuously different people does not in itself alter their practical inequality, the inequality of their capacities for action and of the values that other people attach to them. In other words, the classical liberal analysis of politics as something other than a continuation of the status quo may argue in favor of a basic notion of the equality of individuals, but that analysis tends to stop short of providing accounts of the possible redistributions of the conditions of equality. (Indeed, insofar as classical liberalism argued for the equality of individuals by claiming that individuals could form ideas and judgments and actions that went beyond the norms of previous actions and perceptions, it could plausibly seem to make specific models and examples look like a distraction.)
Both the economic analysis of Marxism and many of the policies of the modern welfare state have attempted to address this problem of liberal abstraction-a problem that is, arguably, not really so much one of abstraction as of a reluctance to see existing examples as bounding the field of possibilities. Yet, whatever the successes of these approaches, they have had considerable difficulty addressing the inequality that attaches even to the effort to advance equality in the most basic economic terms. For, even in the process of rejecting the liberal focus on the value of the individual, they have tended to imagine that inequality can be dealt with almost exclusively in the present, whereas, as Pierre Bourdieu suggests in his sociological investigations of the operations of class, "precocity is an effect of seniority." Precocity in Bourdieu's analysis is what we might recognize more generally as the recommendation of membership in a group, the increased likelihood that others will value an individual in ways that track the way they have valued other individuals who resemble him or her by virtue of membership in the same family, association, race, religion, or gender. It is the condition of being able to be credited with quickness for not having had much distance to cover.
The interest of MacKinnon's work, as I see it, lies in its implications for the question I have briefly been identifying-the question of the valuing of persons-and in its analysis of the resources available for altering the values of individuals as they have been assigned in the present on the basis of registrations of past value. Of the efforts to claim that one can identify the value of individuals as anything other than a recognition of present norms and values, the two most prominent are the law of torts and the liberal assertion of the fundamental equality of persons. Each of these approaches makes a more or less compelling argument for insisting upon the superiority of an assigned value that differs from that of present circumstances, and a brief canvas of their central features can serve to indicate the uses and limitations of each.
Tort law makes claims about the proper value of an individual largely by identifying an incident that interrupts the value that a person would have had in the most plausible projection of his future as a direct extension of his past. That is, it assigns persons property not only in all the things that are most obviously property but also in a variety of extrapolations of actual physical property (potential earnings over a lifetime, psychological distress, reputation, and so forth). It makes claims for the value of what would probably have occurred as opposed to the value of what actually has come to be and tries to compensate an individual for the value that an unblemished reputation, undamaged property, or uninjured limbs would have had for him or her.
The applicability of a modified version of the tort approach to women's equality suggested itself in MacKinnon's early work Sexual Harassment of Working Women, in which she describes sexual harassment as "tort-like." In its tort-like aspect, sexual harassment constitutes an interruption of an individual's projectable property in their job (with whatever compounding might seem appropriate). Yet if tort law continually pleads the case for a plausible value against an actual one, its limitations in attesting to the values of persons who have not yet been valued are significant if not always obvious. Tort law requires that imagined losses become visible in conjunction with an actual past, and it primarily criticizes the current valuation of a person by way of a contrast with the value that one would have predicted for a person who had a particular recognizable value in the past. Insofar as it argues against the justice of a present assessment of value, it does so by reference to a past in which a higher value was clearly perceptible. Tort law does not attempt to redress past imperceptibility or deficient perceptions of value in the past.
The equality model of liberalism, by contrast, does attempt to set aside such deficient perceptions of value in the past. Yet it does so largely by seeming to argue that the recommendations of experience ought simply to be rejected. In that sense, it seems abstract, committed less to countering the weight of specific examples than to dismissing them. Understood as an abstract affirmation of an abstract equality, liberalism may seem, as it does to MacKinnon, to claim that increasing the freedom of one always increases the freedom of all; it may seem to see its work as complete at the outset when it affirms the priority of virtually universal human faculties over particular circumstances.
(Continues...)
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Table of Contents
PrefaceAcknowledgments
Introduction
1. Pornography: The Theory
2. Justine, or The Law of the Road
3. Eugénie, or Sade and the Pornographic Legacy
4. Emma, or Happiness (or Sex Work)
5. Connie, or The Lawrentian Woman
Patrick: An Epilogue
Notes
Index