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Whose Right? Ronald Dworkin, Women, and Pornographers
- Temple University Press
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A ~S) Whose Right? Ronald Dworkin, Women, and Pornographers RAE LANGTON ... SHOULD LIBERAL THEORISTS be in favor of permitting pornography? As champions of our basic liberties, and as champions especially of free speech, liberals have found it easy to answer this question with a simple "yes." They are of course accustomed to viewing their opponents in this debate as conservatives, who want pornography prohibited because it is immoral: liberals view moralistic motives of this kind with deep (and doubtlessjustified) suspicion. But there are other voices in the debate, too, voices arguing that we have reason to be concerned about pornography not because it is morally suspect, but because we care about equality and the rights of women. This aspect of the debate between liberals and their opponents can begin to look like an argument about liberty and equality-freedom ofspeech versus women's rights-and so, apparently, it has been regarded by the courts. Ronald Dworkin is one liberal theorist who has defended a right to pornography, addressing the topic in "Do We Have a Right to Pornography?"! He is, in addition, a liberal who thinks that there can be no real conflict between liberty and equality.2 Given that the pornography issue can be seen as apparently posingjust such a conflict, it is natural to wonder whether Dworkin is right. ... I. Theoretical Framework In "What Rights Do We Have?" Dworkin sets out some basic elements of his political theory, and the role that rights have to play in that theory.... Dworkin takes as his starting point certain "postulates of political morality" that are central, he says, to a liberal conception of equality. They can be summed up in the slogan "Government must treat those whom it governs with equal concern and respect." ... [The] distinction between personal and external preferences is one that is crucial to the development of Dworkin's theory of rights. One simple way to see that theory ... is Langton, Rae: Whose Right? Ronald Dworkin, Women, and Pornographers. 19 Phil. & Pub. Aff. 311 (1990). Copyright © 1990 by Princeton University Press. Reprinted by permission ofPrinceton University Press. Copyrighted Material 87 88 I RAE LANGTON as a response to the inadequacies of unrestricted utilitarianism when it is confronted with the demands of a liberal principle of equality.3 In brief: Utilitarianism tells us to maximize the satisfaction of preferences; but if we do that without first disqualifying the preferences of any citizen for the assignment of goods and opportunities to citizens other than himself, the calculations may be distorted, a form of "double counting " may result, and the final outcome may be one that does not treat each citizen with equal concern and respect. Rights are a useful theoretical means ofpreventing this unwelcome result; rights are a means of protecting individuals from the external preferences of other individuals. What counts as an external preference? And how do such preferences disrupt the otherwise egalitarian character of utilitarian arguments? We can, says Dworkin, distinguish two ways in which the preference of a citizen can be external, ways that correspond to the twin aspects of the equality principle. The citizen may, first, prefer that another citizen be assigned fewer goods and opportunities than others because he thinks that that person is simply worth less concern than others. Consider, for example, a group of citizens who believe that blacks are simply worth less concern than whites, and whose preferences manifest this prejudice. They prefer, say, that the preferences of blacks be worth half those of whites in the utilitarian calculus. If such racist preferences are taken into account, says Dworkin, the utilitarian calculus will be distorted, and blacks will suffer unjustly as a result. Alternatively, and here we have the second kind of preference, a citizen may prefer that another citizen be assigned fewer goods and opportunities than others because he believes the person's conception ofthe good life to be worthy of less respect than the conceptions of others. Dworkin gives as examples of this second variety the moralistic preferences of people who disapprove of various practices (such as homosexuality, pornography, Communist party adherence) and prefer that no one in society pursue such practices. If such preferences are taken into account, the individuals in question (homosexuals, pornographers, communists) will suffer, not simply because in the competing demands for scarce resources some preferences must lose out, and they happen to be the unlucky ones. They suffer, rather because their own views about how to live their lives are thought to be deserving ofless respect...