To most, the word ‘pornography’ quickly brings to mind other terms such as immoral, degenerate behavior, both on the actors and viewer’s part. This society, through its justice system, punishes many types of behavior generally deemed immoral and degenerate. So why shouldn’t pornography be illegal and those who engage in its production or distribution punished by law? For the same reason prostitution should be legal. Activities involving consenting adults and do no harm to anyone outside of possibly the participants should not be illegal in a free society. In addition, pornography is protected by U.S. law, the First Amendment to the Constitution.
No law regarding indecency passes constitutional inspection no matter how vigilantly crafted or well intended. This paper borrows from H. L. A. Hart’s viewpoint regarding a person’s freedom being restricted simply because it conflicts with society’s collective morality and the enforcement of unjust laws. An understanding of the ‘no harm’ position is paramount because controversial topics such as euthanasia, drug use, gambling, prostitution and pornography continue to be targeted for conservative-minded zealots that would restrict freedoms for other Americans to satisfy their own, myopic worldview.
The conservative viewpoint argues for the use of law to preserve morality and thus society itself. The conservative viewpoint, though credible in its intent, is indefinite as to its parameters. This compels subjective judgments in criminal cases intended to relieve a person of their freedom. This viewpoint further held that criminal prosecution had the ability to alter individual behaviour with little to no regard for differences among cultures.
Hart opposed this viewpoint explaining that immorality does not jeopardize society. Further, he argued the conservative stance implied that the morality of a society can’t or shouldn’t change. Hart championed an individual’s right to be individual, by maintaining that there is no common morality in a multi-cultural society and we would have no freedom if we could only do those things a majority of others approved of. He thought it unfair that the conventional morals of a few should prevent others such as Arthur from doing what they want.
These two clearly defined ways of thought regarding the making of laws have been the subject of much public and legislative discussion. “Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individual rights and aimed at their protection” (Rand, 1964, p. 128).
Laws are largely based on the collective conscience of the majority, the accepted morality of the prevalent culture. There is a necessary relationship between the concepts of law and morality. According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions. Morality and distastefulness are left to individual interpretation while laws govern all, which leaves society to decide whether those individual’s freedoms take precedence over what others find offensive, immoral or otherwise unacceptable behavior.
If morality is to be legislated, whose morality is legislated and who decides to what degree it should be interpreted and enforced? If 51 percent of the populous are morally offended by flared pants, so much so that lawmakers made it a capital offense, what happens to the rights of the other 49 percent of the population? “No one should think even when popular morality is supported by an overwhelming majority or marked by widespread intolerance, indignation, and disgust that loyalty to democratic principles requires (society) to (prove) that its imposition on a minority is justified” (Sylla, 1998).
Hart did agree with a partial enforcement of morality. He based this pliability on the issue on a distinction he drew between immorality which offends public modesty and that which merely concerns others based on the knowledge that immoral acts are taking place. In place of the opposing justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality.
In Hart’s view society may, for example, outlaw the public expression of bigamy or prostitution, because such could be considered an affront to public decency, as a nuisance. At the same time, it would not be justifiable to outlaw purely private manifestations of these types of behavior, or of consensual homosexual behavior in private, even though some might claim to be distressed by the private behavior as well.
At this point, Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: “no social order which values individual liberty could also value the right to be protected from this type of distress” (Sylla, 1998). The center of Hart’s argument is the “Harm Principle” extrapolated from John Mill’s composition 100 years earlier. “… That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill, 1885).
As society evolves, it continues to move toward a no-harm, no-foul approach in criminal law-making decisions, a movement Hart would have supported. Hart scoffed at the notion that society’s moral fabric would unravel unless criminal law was applied to enforce the morals of society thus defending social order itself. How much harm could be measured is a difficult explanation. Hart’s viewpoint held that societies are able to survive changes in basic moral values. As moral views are constantly changing, it is ridiculous to think that when a change in moral values occurs, a society has disintegrated and replaced by another.
Although Hart, in his writings, conceded that some communal morality is crucial to the existence of society, he questioned the jump from there to the suggestion that a change in society’s morality is tantamount to destroying it.
Mill, John Stuart. “On Liberty.” New York: John B Alden, p. 9. (1885).
Rand, Ayn. “The Virtue of Selfishness.” Colchester: Signet. (1964).
Sylla, Mary. “Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin.” University of North Carolina at Chapel Hill School of Law. (1998).