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Published online by Cambridge University Press: 13 January 2009
In recent years, there has been renewed interest in the question of when, if ever, the state may use coercion to enforce majority views about what types of conduct are right or wrong, noble or base, decent or indecent. Such interest has been generated by both political and philosophibal pressures. In recent political history, controversies over such issues as abortion, homosexuality, pornography, textbooks in schools, new reproductive technologies such as surrogate parenting and in vitro fertilization, and faith healing have focused attention on the role of the state in supporting or opposing various moral views. In political philosophy, often a theoretical reflection of the political debates of the time, we have seen renewed attempts to provide a satisfactory foundation for traditional liberal (in the sense of Millian) views of the legitimate scope of state power. In particular, there has been an emphasis on the neutrality of the liberal state and the right of individuals to be treated as equals by the state.
1 Dworkin, Ronald, “Is There a Right to Pornography?”, Oxford Journal of Legal Studies, vol. 1, no. 2. (Summer 1981).CrossRefGoogle Scholar All quotes are from this article unless otherwise specified.
2 Report of the Committee on Obscenity and Film Censorship Cmmnd 7772, HMSO, London, 1979. This committee, chaired by the philosopher Bernard Williams, examined the legal restrictions in England on written material, film, and live performance from the standpoint of their sexual content. Its general recommendations were that it is legitimate to have some restrictions on the availability of material considered obscene, but not for such material to be forbidden. An exception to the latter was the ban on live sex shows.
3 “It is only in politics, for example, that people can express in any effective way their sense of justice, or of conservation of the art of the past, or of the design of the space in which they will live and work, or the education their children will at least for the most part, receive.” “Pornography,” p. 190.
4 “It would limit their ability to bring about a cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which structure their own and their family's sexual experience are likely to have these qualities in less degree.” ibid., p. 190.
5 ibid., p. 191. For similar ideas used to support some form of the enforcement of morality, see Powers, William, “Autonomy and the Legal Control of Self-Regarding Conduct,” Washington Law Review, vol. 51: 33 (1975).Google Scholar
6 By a goal-based strategy, I mean an argument which assumes some desirable state of affairs, such as human well-being or autonomy, and then claims that some other state of affairs or condition is required or useful to achieve that desirable end.
7 “Pornography,” p. 194.
8 Many of these formulations refer to the issue of sexual morality, but Dworkin intends these claims to have a wider scope.
9 “Pornography,” p. 194.
10 ibid., p. 195.
11 ibid.
12 ibid., p. 196.
13 ibid., p. 207.
14 ibid., p. 209.
15 “The Place of Liberty,” Iowa Law Review, vol 3, no 1 (October 1987), p. 29.
16 ibid., p. 31. In an earlier draft of this article, Dworkin uses a version closer to that we have been considering.
“The principle of independence therefore prohibits constraints whose justification, for a particular community, must appeal to the popularity of forms of life which include or involve contempt or distaste for other forms of life or a sense of superiority over other people.” “What Liberty Is: Draft,” October 16, 1986, p. 20.
17 “Pornography,” p. 208.
18 ibid., p. 209.
19 “Utilitarianism claims that people are treated as equals when the preferences of each, weighted only for intensity, are balanced in the same scales, with no distinctions for persons or merit.” ibid., p. 202.
20 ibid., p. 202.
21 ibid.
22 ibid., p. 203.
23 ibid., p. 204.
24 ibid., p. 205. Query: Does this allow for elections in which some persons lose simply because others dislike them?
25 ibid.
26 ibid.
27 ibid., p. 203.
28 ibid., p. 205.
29 ibid., pp. 203–4.
30 ibid., pp. 197–98.
31 Dworkin, Compare, “Liberty and Moralism,” in Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 248–53.Google Scholar
32 Taking Rights Seriously, p. 276.
33 This is not quite a reductio. Dworkin would point out that only the argument from the numbers of people who believe that something is just or unjust is ruled out. It is left open that the fact that something is just or unjust is still relevant. But I should think that it is often legitimate to decide on the basis of counting heads that, say, a certain tax measure perceived as fair by the majority should be public policy.
34 As John Ely has noted, Dworkin's scheme would forbid people forming their political preferences on utilitarian grounds (since these preferences would explicitly incorporate the preferences of others). See “Professor Dworkin's External/Personal Preference Distinction.” Duke Law Journal, vol. 1983, pp. 959–986.
35 “Pornography,” p. 212.
36 “What is Equality? Equality of Welfare, Part 1,” Philosophy and Public Affairs, vol. 10, p. 185 (1981). “Equality of Resources, Part 2,” Philosophy and Public Affairs, vol. 10, p. 283 (1981). “What is Equality? Part 3: The Place of Liberty,” Iowa Law Review, vol. 73, no. 1 (October 1987).
37 “The Place of Liberty,” p. 26.
38 ibid., p. 29.
39 ibid., p. 31.
40 ibid., p. 29.
41 Compare ibid., p. 26.
42 ibid., p. 30. To be fair, Dworkin is restricting his attention to the criminal law, so a better example would be the restrictions on the use of certain kinds of recreational vehicles (e.g., snowmobiles) to preserve wilderness areas.
43 ibid p. 32.
44 In some recent unpublished work – particularly an essay called “Liberal Community” – Dworkin uses a very different (and, in my view, more promising) line of argument for his anti-enforcement views. These are arguments based on the impossibility of making people's lives better by the use of force, because (roughly) nothing adds value to someone's life if he does not (genuinely) endorse it as a valuable component. This controversial conception of well-being clearly warrants separate discussion.
