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Rights-Based Moral Theories and Pornography
Adding to Our Vocabulary
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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.
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Example: Right to Free Speech.
Rights Based Theories
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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. 22).
Different Concepts of Rights
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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
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One common criticism of RBTs points to the
proliferation of rights.
 Construed merely negatively, rights seem to be limited,
but when we consider the range of positive rights, their
number expands considerably.
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Another common criticism points to the apparently
inevitable conflict between rights.
 The issue becomes how to adjudicate between these
conflicting claims.
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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.
23).
Dworkin, “Liberty and Porn”
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Like Strossen, Dworkin argues against
censorship of pornography, but rather than
focusing on consequentialist concerns about
effectiveness, Dworkin uses 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
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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:
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2.
That the concept of positive liberty is susceptible to
paternalistic misuse.
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.
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Another Harm?
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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 required adjudication.
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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.
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Too quick?
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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 (116c1).
Ask yourself, is it the case that women in
pornography are typically treated or depicted in a
degrading way?
The Final Analysis
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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.