Law and Critique VolJ no.2 [1990]

DEBATING PORNOGRAPHY: THE SYMBOLIC DIMENSIONS

by BEVERLEY BROWN"

The issue of pornography has come to be a key debating point between liberalism, conservatism and feminism, and also a point of conflict between feminists. This paper, while clearly feminist in its orientation, is not an attempt to advocate a position within these debates. Rather, it is about the ways that debate is conducted, constructed and reconstructed. It is about the ways that pornography is identified as an object of contestation in political and theoretical argumentation and as the disputed subject of political alliance and misalliance. The ultimate concern is the conditions of intelligibili t y - and unintelligibility- imposed upon feminist modes of address by official political discourse. The particular strand of commentary here concerns some of the symbolic dimensions of pornography debates, meaning: (1) pornography as a symbol of fundamental political values and visions, (2) pornography as a symbol of the social order itself and consequently, (3) the emblematic status of its verbal and visual images, and (4) pornography as a symbol of shifts in political policies and programmes that may have little to do with pornography as such. While some of these modes are common to all politics, others are not. It will be argued that feminism has a special affinity with the politics of the symbolic, especially with the second and third symbolic dimensions. This transcends differences between feminists while at the same time bringing feminism closer to conservatism than liberalism. Yet the dominance of liberal political discourse and its particular focus on the law tends to render the politics of the symbolic beyond the pale of official intelligibility. These arguments, and their implications for the understanding of what is at stake in the issue of pornography, will be illustrated by reference to *

Centre for Criminology and the Social and Philosophical Study of Law, Faculty of Law, University of Edinburgh.

132 Law and Critique VoLIno.211990] changes in the legal definitions of obscenity. The term 'symbolic' is used in this paper in a rather loose way t o capture a number of aspects of pornography that usually seem to elude comment. Later I shall relate this usage to others, such as the notion of symbolic crusades. For the moment, however, let us begin with the phenomena and, in particular, with the fact that pornography is seldom treated as an isolated single issue or specific social occurrence. In this sense, reactions to pornography are always excessive and in need of explanation. It is that 'excess' that is addressed here.

Arguing Politics Debates about pornography bear a depressing resemblance to family arguments. What seems at first sight a small matter suddenly blazes u p into a major row. The contenders go quickly to their corners. Suddenly the most fundamental differences are at stake. Everything is on the line. Yet, at the same time, everyone seems to be talking about something different, although each thinks that their point of view is obviously, transparently, self-evidently right. Why can the others not see what pornography is really about? It is as if they are all talking in different languages. Then, as the night wears on, family alignments begin to shift. Sisterly alliances turn out to conceal ancient feuds, while elder brothers patronisingly explain what 'the girls' are trying to say. Mother insists that, while he sounds very reasonable, the girls really do have a p o i n t - she w o u l d n ' t put it quite that way herself but she's always felt ... In the end, they all appeal to Father who must decide. It's bed-time. This scenario is all too familiar. The family dispute translates in terms of debates between feminism, liberalism and conservatism, and their relation to the figure of the law. The three positions each present radically different versions of what the issue is all 'about' in the first place. Nor are these simply differences on the subject of pornography. What we are looking at here is the most fundamental of clashes between different types of political vision. For liberalism, pornography is about the balance between freed o m and harm, with the basic presumption in favour of freedom of speech and ~irtistic expression and information. Behind that, there is the freedom to have a variety of lifestyles in a pluralistic demo-

Debating Pornography: the Symbolic Dimensions 133 cratic society. Pornography is equated with the problem of censorship and censorship threatens all that is healthy in a free society. Thus pornography comes to stand for decades of struggle to secure freedom of religious belief and to protest the rule of unjust governments and tyrants. It is placed on the same honoured series as freedom of conscience and opinion and thus structured within the pregiven framework of questions about the limitation of state power and the use of law. The whole logic of this position is glossed with the supremely legal analogy of a presumption: Mill's famous presumption in favour of liberty is like the presumption of innocence in a criminal trial. The first chapter of On Liberty paints a picture of human history in which government has for too long been allowed to operate on the opposite presumption, that state power needs no justification. Hence the balancing act of liberalism is weighted in such a way that only a very specific class of items may overcome the presumption. Censorship, as a restriction of freedom, can be justified only if images or texts can be shown to produce some sort of harmful effects great enough to outweigh the harm of legal intervention. In this logic, harms must be serious, preferably criminal; they must be quantifiable and provable. On top of that, any legal intervention has to be effective. For the other great liberal value is pragmatism. Less grandiose than the celebrations of liberty, pragmatism is its powerful supplement, for what is more ludicrous than a law that either does not work or produces the opposite of its intended effects? Pornography thus figures in the descant as an object that always threatens to elude the law or proliferate through its suppression. Having dignified pornography by association with the great value of liberty, it would be the ultimate indignity to the rule of law if intervention was totally ineffective. There are times when conservatives share the discourse of liberalism. Pornography is often portrayed in terms of harms calculable in liberalism's licensed terms, especially crime. This is hardly surprising given the dominance of liberalism in establishing the terms of 'reasonable' discussion. But such borrowings by individuals advocating a conservative position do not represent the essence of the conservative view of what pornography is 'about'. For conservatism, pornography is about the general erosion of community values and especially the basic building block of society, the family. Society is

134 Law and Critique Vol.I no.2 [1990] not a mere collation of individuals and interest groups but is bonded together by shared values and a common way of life. The family is the locus of that common moral outlook, not only (as a liberal might recognise) the primary point of socialisation but something much more than that, the expression of who we are as social beings. The family represents the community morality in m i c r o c o s m - and the law should represent the community. Pornography threatens this community and thus threatens to break u p society as a whole. Pornography presents deviant sexuality as normal; it separates sex from love and marriage; it overvalues the sexual. In all ways pornography decontextualises sexuality from its proper role in family and community life. If pornography offends individuals, this is only because it offends the common consciousness of the community as a whole. For feminism, pornography is not about sex but sexism, not sexual morality but the position of women. Pornographic images are but an extreme and graphic form of women's subordination, their lack of p o w e r and their position as means to male gratification. Pornography speaks the culture of sexism in its exemplary form. Pornography is thus the/ssue representative of the whole of patriarchy: A critique of pornography is to feminism what its defence is to male supremacy. Central to the institutionalisation of male dominance ....1 In this vision, there are no boundaries to pornography's capacities or its effects. Women are subordinated in the making of pornography and its consumption. They are dealt with in terms of their external bodily characteristics, as defined by artificial social norms, rather than their inner selves or real lives. Pornography cannot be isolated from other forms of sexual representation nor from the entire regime of power relations. The tolerance of pornography is an index of the kind of society we live in. If the humiliation of women in the image is permissible then other violations are implicitly sanctioned, whatever the official view on crimes against women. A political world that cannot see pornography as the most outward and visible sign of a patriarchal culture enacting its forms of subordination in all aspects of everyday life has made itself intentionally deaf and 1

C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass. and London: Harvard University Press, 1987), 146.

Debating Pornography: the Symbolic Dimensions 135

blind to the obvious. These three announcements of what pornography is 'about' cannot be dealt with simply in terms of the easy (liberal)relativism that comfortably describes h o w different'perspectives'define issues in differentways. This is a debate about the very validity of those framing perspectives. Thus, the presentation of the pornography issue is not only necessarily affected by these differences in perspective but, even more strongly,ithas become a central topic for staging great confrontations about what the perspective should be. That is w h y to all three parties this is a highly charged issue. Liberals s u m m o n up figures like T o m Paine and Emile Zola, and argue that basic principlesor constitutionalissues are at stake. Conservatives see a society, even a civilisation,in decline through the loss of a moral identity centred in the family. Feminism constantly insists that neither of the other two positions is willing to recognise women's oppression as a serious issue. This is the firstsymbolic dimension and it is equally c o m m o n to all parties in debates about pornography. Recognising thisargumentative function does at least explain something about the sheer 'excessive' intractability of pornography debates and the feeling that so m u c h is at stake n it is. Pornography is being used as an issue in the same w a y that health or unemployment have functioned to battle out the legitimacy of very general politicalperspectives. However, while it is true that there are m a n y issues that, at various times, have operated to stand for basic politicalorientations, sexuality has been, in one form or another, a recurrent sitefor figuring the fundamentals of politicsand power (as Foucault argues2 in analysing both the denunciations and the actualitiesof government in the current social order). In the denunciatory mode, the theme of state repression has all too often been symbolised through the theme of sexual repression in the discourses of liberation that enunciate a politics devoted to unleashing the great potential of humankind, heretofore held in check. Here pornography stands for a power that today is subordinated and tamed, defused and distorted -- but tomorrow will be different. In a recent Marxist variant,

M. Foucault, The History of Sexuality, Vol.1 (London: Allen Lane, 1979). See also M. Cousins & C. Hussain, Michel Foucault. chs.8 and 9 (London: Macmillan, 1984).

136 Law and Critique Vol.I no.2 [1990] '... pornography will exist in a communist society because it contributes to the rich, sensual, sexual lives of a communist people', a Similarly, feminists from Angela Carter 4 to Susan Griffins have posed a vision of an underlying sexuality or eros, wild and dangerous or soft and harmonious, that in pornography appears distorted and bound but that may ultimately be released. Pornography is 'about' de-repression. Even in the conventional stylistics of legal positivism sexuality has similarly functioned as the point of articulating the great rhetorical divide between law and morality, uttered most memorably in the dictum of the Wolfenden Report that sexual morality is 'not the law's business'. 6 Thus the great power struggle between two very general visions of the role of law is announced not in terms of morality in general but in terms of sexual morality, that allows 'morality' to be made into a specialised, private matter necessarily partaking of the bedroom rather than the courtroom. Feminist Divisions

While feminism presents a united front at the level of announcing that pornography is about the oppression of women, there have also been some serious rifts within feminism (the sisterly feud). In Britain, debate has been articulated around two strongly contrasting positions with a third one in between. For some, pornography is violence and demands legal intervention. For others, pornography is representationTand demands textual analysis. Pornography-asviolence feminists present pornography on a continuum with rape and child abuse and emphasise sado-masochism as its symptomatic essence. For them, pornography reflects and reinforces the reality of 3 4 5 6 7

A. Soble, Pornography: Marxism. Feminism and the Future of Sexuality (New Haven and London: Yale University Press, 1986), 108. A. Carter, The Sadean Woman and the Ideology of Pornography (New York: Pantheon, 1978). S. Griffin, Pornography and Silence: Culture's Revenge against Nature (New York: Harper & Row, 1981). "The Wolfenden Report", Report of the Committee on Homosexual Offences and Prostitution (Cmnd.247, 1957). 'Representation' is admittedly a slightly inept name for this position given its critique of the specific meaning of representation as representation of the real.

Debating Pornography: the Symbolic Dimensions 137 male power at its most c o e r c i v e - force and the threat of force. Pornography is the theory; rape is the practice. While these forms of power are often presented as eternal, there is also a concern that the last twenty years have seen an escalation and an eroticisation of violence. For these reasons, there is a strong pressure to increase legal intervention but framed in terms that express feminist concerns. Pornography-as-representation feminists start from the text and the masculine/feminine structures of reading and viewing. Many of these writers come from the world of film and media analysis and bring to the issue of pornography a perception of the importance of meaning as an issue in itself. Pornography constructs woman as object of an objectifying, consuming, fragmenting gaze that is masculine not necessarily by the sex of the audience but as a position which even a woman spectator necessarily inhabits. Pornography here is placed on a different continuum, this time with the wider cultural production of meanings: What feminist analysis identifies as the pornographic structure of representation ... the systematic objectification of women in the interest of the exclusive subjectification of men ... is a commonplace of art and literature,s Equally, the position of the woman identified with the to-belooked-at quality of the pornographic images underlines important processes of identification and vulnerability. This perspective does not lead to a demand for increased legal intervention, largely because the law seems either irrelevant or too pre-determined in its construction of the issues or such a tiny part of the system of the cultural production of meaning. However, this different position on law has not been, in Britain, the central locus defining the division between these approaches. Rather dispute has been focused primarily around the basic status of visual and verbal images and how they are to be understood. Pornography-asrepresentation feminists accuse the others of having a too literalminded understanding, focusing on the content of the image rather than its structure, relying on a notion of the male mind as a tabula rasa on which images are imprinted and then acted out, and paying too much attention to the violence of the image and not enough to the 8

S. Kappeler, The Pornography of Representation (Cambridge: Polity, 1986), 103.

138 Law and Critique Vol.I n o ~ [1990] generalised quality of objectification and insult. To focus on the most graphic form of violence is to distract attention from 'Page Three'. To recognise 'Page Three' in terms of sexual violence enacts a similar silence. The response from radical feminists has been to point out that such images are rather seen as part of a wider practice and that the point is not about the literality of 'copy-cat' actions but general thresholds of tolerance for violence against women. In the background, there are clearly other issues at stake besides the status of images, notably the nature of power relations and whether force and coercion is not too crude an understanding. Here the critique of representations sometimes links with a third position that centres on the axis of discrimination and the mechanisms of inequality. In a tradition that goes back to Millett's 9 Weberian analysis of patriarchy, the concern here is with the legitimation of domination through belief systems rather than violence, the stability of power systems, not their forms of conquest. Pornography's central and successful message, to the empowered and the disempowered alike, is that w o m e n have one social role and that is to be sexual objects (for Millett, a message attributed to the literature of Lawrence and Genet). Hence what is at stake is not only equality in the sexual realm but in every other social role that pornography implicitly refuses to women. It is not only men who believe this, but women tDO. These three positions are 'ideal types" and m a y often be found mixed together in the texts of individual writers or pieces of proposed legislation. The Dworkin-MacKinnon Ordinance is a very good example of a mix of the first and third position. It targets representations that involve: the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised and physically hurt; in postures of sexual submission or servility or display; reduced to bodily parts, penetrated by objects or animals, or presented in scenarios of degredation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context that makes these conditions sexual. TM The Ordinance sought to operate within civil not criminal law. 9 K. MiUett, Sexual Politics (London: Virago, 1977, first published 1970). 10 See "Francis Biddle's Sister" in C. MacKinnon, supra note I, at 176.

Debating Pornography: the Symbolic Dimensions 139 Pornography is seen as the sexualisation of inequality that attacks both women's safety and status. Nor are these typologies exhaustive of all the strands within feminism. In America, the themes of pleasure and danger have been used to stand the pornography-as-violence position on its head by claiming for feminism its most rejected identities and acts. In a great, serious and satirical reversal of values, the ' f e m m e ' and the 'top' may even claim sexuality back from the 'wimmin's revolution': As l understand it, after the 'wimmin's revolution', sex will consist of wimmin holding hands, taking their shirts off and dancing in a circle. Then we will all fall asleep at exactly the same moment.:~ There are various ways of characterising these disputes. Sometimes they are traced back to wider divisions within feminism. The pornography-as-violence position is seen as etched out of the past of a radical feminism that pictures patriarchy as a timeless struggle of the class of men versus the class of women. Pornographyas-representation theorists are similarly diagnosed in terms of ultimately Marxist origins and a concern with ideology. The pornography-as-discrimination stance is cast in the role of optimistically mediating between the two in the light of an era of anti-sex discrimination legislation, or, as suggested here, drawing on the Weberian tradition of analyses of beliefs and legitimation. The ironies and reversals of 'pleasure and danger', in turn, may trace their past in Sadean satires of both sentimental humanism and the Kantian reverence for the voluntary contract, the twin forms of liberalism. 12

Liberal Logic The usefulness of such genealogies is limited but they are preferable to one very common mode of dividing up feminists in terms of their attitude to using the law. This is the moment where liberalism makes its bid for discursive hegemony as keeper of the political order. Here we hear the older brother's voice insisting that there is but one political vocabulary, the lingua franca of freedom and harms 11 P. Califia, "Feminism and Sadomasochism", Heres/es 3/4 (1981), 32. 12 See T. Adorno, "]uliette or Enlightenment Morality", in Dialectic of Enlightenment (New York: Seabury Press, 1972).

140 Law and Critique Vol.I no.2 [1990] articulated around the singular question of state intervention. The key move here is to submit feminist discourse to the legal t e s t - a test which is doubly legal. Literally, it is to pose the question, are feminists for or against legal intervention? Law, for or against, functions as the sole index of feminist argument. Once known, everything else follows. This test is legal in another sense as well, for the idea of tests is one of the basic techniques in legal argumentation as a way of determining the choices between available, preconstituted alternatives. A test does not represent the essence of a position but its outward and visible sign. It is thus the perfect mechanism for asserting and deferring issues, balancing principles and pragmatism. Pornography having been set up as a great issue of liberal principles and pragmatics, the dominant response is to instruct feminists that what they are 'really' talking about are fundamental human freedoms and the conditions under which they may be curtailed. 'We' live in a liberal democracy consensually committed to managing a pluralism of values and these are the ground-rules. If feminists wish to make a point could they please speak 'clearly' in these terms. Feminists who do not advocate more legal intervention clearly place a high value on freedom of the individual and freedom of speech. Feminists who call for the law to take pornography seriously must at least show that pornography causes harms serious enough to overbalance the presumption in favour of liberty. These harms must be scientifically demonstrable and demonstrated. If feminists fail to conform to this criterion, then they risk liberalism's greatest sanction, the label of moralism. The way these contrasts are presented, those who do not seek l e g i s l a t i o n - particularly through the criminal l a w - are the true liberals while those who do are designated conservatives and labelled with the old ' b o o - w o r d ' of moralism. Since the nineteenth century, the moralist has been defined as the Other of liberalism the one who reacts arbitrarily or purely subjectively, driven by panic or outmoded minority obsessions, traditional and religious values to impose their will arbitrarily u p o n others. Thus pornography-asrepresentation feminists are incorporated on the basis that their primary commitment must be to the general human values of freedom of the arts or political expression, while pornography-as-discrimination feminists are presented as deriving their beliefs from the value of formal equality and the rule of law, while pornography-as-

Debating Pornography: the Symbolic Dimensions 141 violence feminists are cast into outer darkness as puritans, prudes and killjoys. Through such recursive reductions, all feminisms are thus recast and reintegrated in the sole terms that liberal political discourse can comprehend. 13 In the background are the supplementary voices that echo around the great metaphor of repression. On the one hand, feminists are harried by the image of sexual potential as the key to resistance and revolution, sexual restriction as the image of state and personal inhibition. Reeling from this totalising vision, at once totally general and totally individualised, feminists then face its pragmatic revision. If pornography is officially curbed, will it not fester underground in even more perverse and violent forms, increasing in quantity and ever more qualitatively debased as the result of repression? If feminist objections are recognised, then how to draw the line, for it appears that pornography is but the most extreme form of a totally violatory culture? Finally, feminists are solemnly warned that their images would suffer too, for what law could recognise the difference between vulgar and advanced vulval forms? Liberalism is a very powerful perspective and it very often does function as the only legitimate officially recognised political language. But this version of feminism in terms of women who do and women who do not seek increased legal intervention is multiply misleading. It is based on a presumption about the nature of the m o d e m social order that feminists fundamentally reject. For feminists argue that we do not live in a pluralist liberal democracy governed by legal rationality and limited individualism. On the contrary, whatever the variations and problems in the concept of patriarchy, its continuing use signifies the presence of anomaly, to put it politely, the co-existence of modernity and tradition, the persistence of status/gender-based systems of power by birthright in a world that is officially constituted in quite different terms. Appeals to a general ethos of individual freedom or a consensus-based acceptance of legal instrumentalism are simply otiose. Women are not constituted as individuals but as a group. Their share in the official consensus cannot be known in a system of political representation that excludes

13 This is not to deny that feminists have used such designations themselves. See P. Rush, review of D. Lacombe in International Journal of the Sociology of Law 17 (1989), 103-108.

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women. To cast feminism in the language of a liberalism is a contradiction in the most basic terms of social analysis. Not only does this liberal re-division of feminists in terms of their position on law obscure the distinctiveness of any feminist position, it does not even represent the more powerful ways in which liberalism has functioned to capture and define feminist debate. For, if liberalism misrecognises as its own those feminists who are actually indifferent to legal intervention, it has an even more bizarre effect in depicting those who do espouse the law. The presentation of pornography-as-violence feminists as moral revivalists completely overlooks the contribution of liberal discourse to this position. Ironically, it is here that the logistics of the harm principle has met its most receptive audience, x4 For liberalism should not be defined in terms of whether or not law is to be used, but rather in terms of how legal intervention is conceptualised. In fact it is the pornography-as-violence position that is the most easily assimilated to liberalism. The harms emphasised here are precisely the sort of harms that liberalism is inclined to take s e r i o u s l y - the serious crimes of violence and exploitation of the young that can weigh heavily in the balance against the presumption in favour of liberty. Posed in these terms, this is a position that is then most vulnerable to those other requirements of liberalism-- proof of causal connection and effectiveness of legislation. This is precisely the reaction that most often greets the pornography-as-violence position. It must be admitted that the response has been rather ingenious. Most predictably, any 'scientific' study showing the links between p o r n o g r a p h y and sexual violence has been endorsed by the pornography-as-violence position. But scientificity is a value that may itself be disputed by subjectivity and so an alternative repertoire of evidence has been produced and, crucially, publicly enacted in the testimony of women's experience speaking to 'their' men's attempts to make them act out pornographic scenarios. But perhaps the greatest rhetorical ploy in this fight-back is the testimony of men's experience. The born-again male sinner, confessing his per-

14 See B. Brown, "A Feminist Interest in Pornography: Some Modest Proposals", raftS/6 (1981), 5-17, where this argument is explored more

ly.

Debating Pornography: the Symbolic Dimensions 143 sonal temptation and corruption by pornography, has become something of a fixture on the feminist scene. The obvious answer to the paradox of 'what the censor saw' - - for how could pornography deprave and corrupt yet somehow leave its professional viewers untouched? - - this redeemed feminist man also echoes other evangelically 'saved' figures in the world of feminism and pornography such as the heroine of the film 'Not a Love Story'. ~s Conservatism and its Feminist Mirror

However, the main concern in this article is not so much the misand match of feminism and liberalism but rather the other major object of misrepresentation in this familiar scenario, the conservative position, together with what is in fact a far more interesting set of connections between conservatism and feminism than liberalism can recognise in its label of moralism. (Hence the connections articulated by the mother's voice in our initial family drama.) Conservatives w o u l d , in fact, find it rather difficult to recognise themselves as painted by liberalism. For them, moral issues are neither outmoded nor merely subjective for, even if under threat, there is still some sort of traditional shared moral life that remains the basis of the community and hence the social order. Liberalism does not even begin to conceive what a conservative understands by the idea of morality; indeed it does its best to render it incomprehensible. This is not a matter of a set of rules and prohibitions, like the Ten Commandments, distinguishing licit and illicit as a simple opposition that could simply be put in the ideal positivist legal form of a statute. Nor is the reaction of the offended to be understood simply by counting the numbers of individuals whose subjectivity and tastes are outraged. Rather what is at stake is a collective way of life that, when attacked, produces a collective reaction. Individual offence is merely a sign of this general response. In fact, the word "mores" is really far more apt than 'morals' to convey the way conservatism understands the social order as bound together through a fabric of custom and shared practices. 'Taste' is not individual whim but a matter of conjoint sensibility. This is, banally, what sociologists 15 R. Rich. "Anti-Porn: Soft Issue. Hard World". in The Village Voice 20

(July 1982).

144 Law and Critique Vol.I no.2 [19901 refer to by reference to "Gemeinschafl"or 'mechanical solidarity' - a cohesive society held together by the essential resemblances and interconnections between all its members. When people react adversely to a deviant image they are not reacting as individuals but as a group that feels that its basic group existence is threatened. Liberalism's view of contemporary society is quite different. In sociological terms, this is 'organic solidarity', a society of differentiated groups held together by their mutual interdependence, or 'GeseUschaft' with its picture of individual rights negotiating their conflicts. Based on a complex division of labour between different social functions, such a society necessarily produces a less homogeneous society and the essential task is to manage the differentiation in the form of rules. Where consensus previously took the form of shared views, now it means only one thing, the agreement to differ within certain boundaries. From this perspective, conservatism is unintelligible because it is premised on a quite different, and now non-existent, type of social order. If it is accepted that, today, there are no collective values, then to invoke them can only appear to be nostalgic or arbitrary. When the question is raised of the resemblances between feminism and conservatism, we do not have to read this through the liberal perception of what a conservative position means. Just as with feminism and liberalism, here too there is clearly a fundamental sociological dispute about the nature of the modern social order, a dispute that liberalism has tried to pre-empt rhetorically by labeling its opponents as moralising reactionaries and sexual puritans. Yet there are, in fact, quite striking similarities between the w a y in which feminism and conservatism understand society. This may seem a very odd claim, and a claim that liberalism certainly does its best to discredit. For, once we have gone beyond the bogey of moralism and puritanism, what connections could there possibly be? Everything that conservatism celebrates, feminism condemns. Tradition is not seen as a source of value but as a long history of patriarchy. The family is not seen as a sacred institution to be preserved but a key site of women's oppression. However, there are important analogies between feminism and conservatism. First of all, the feminist concept of patriarchy is, in a way, comparable to the conservative world of community values - but in reverse. The difference is one of values, not form. The impor-

Debating Pornography: the Symbolic Dimensions 145 tant common feature is the image of an interconnected, homogeneous society in which many different aspects of society may be condensed together, and the parts embody the whole. For both, this traditional order still persists today and has not been replaced by liberal pluralism. This is the Ancien R~gime vision of patriarchy, in which the family is the basic unit of the political order, its mirror. 16 It is the view of the patriarchate presented by Bodin and H o b b e s - and Kate Millett: Patriarchy's chief institution is the family. It is both a mirror and a connection with the larger society.17 With such a vision of the social order, it is not so easy to isolate different issues or areas of life one from another, given the interconnectedness and overlap of institutional features. For conservatism, pornography attacks those basic values; for feminism it exemplifies them. Yet, for all this absolutism of opposition, there is a homology in the two depictions of the cohesiveness and persistence of the traditional social order. Similarly, for each, pornography is not an isolated issue of social policy but stands in an exemplary relationship to the whole social order. There is a second possible analogy between feminism and conservatism, this time invoking the kind of argument put forward by Carol Gilligan in In a Different Voice is that suggests that women have a primary orientation towards concepts like duty and responsibility rather than to the masculinist/liberal sovereignty of rights and possessive individualism. The female ethos of caring sees social beings as oriented primarily towards others rather than to themselves. This suggests that there may be direct as well as indirect connections between feminists and conservatives. Themes that have, in the past, been part of the repertoire of women's oppression need not be* totally jettisoned but may be reappropriated in a different register. In relation to pornography, such a shared sensibilit~v might be seen as focused not so much around ideas of duty but rather 16 See J. Donzelot, The Policing of Families (London: Hutchinson, 1979), ch.3; and K. Tribe, Land, Labour and Economic Discourse (London: Routledge & Kegan Paul, 1978), ch.3. 17 K. Millett, supra note 9, at 33. 18 C. Gilligan, In a Different Voice (Cambridge, Mass. and London: Harvard University Press, 1982).

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the imaging of the honour and status of the collectivity of women. Thus one might discern a sort of feminist utopia in which pornography would be understood as a symbolic attack upon those to whom honour is due, although in the feminist version, of course, this is not the traditional institutions of sacred womanhood. Gusfield's analysis of symbolic crusades is useful in articulating these relationships between feminism and conservatism. He sees the American Temperance Movement as a 'status movement', meaning a 'collective action which attempt[s] to raise or maintain the prestige of a group'. 19 Abstinence came to stand for middle-class membership, as defined by the abstemious, ascetic qualities of old New England and against the style of life of immigrants and blacks. In its ascendancy, the Temperance Movement was thus a privileged site for a series of social groups to stake their claims to status and prestige. The demand for Prohibition was a symbolic not an instrumental goal. But it was a g o a l - Gusfieid distinguishes status movements from merely reactive, expressive movements that aimlessly vent their feelings in some mass phenomenon. In its decline, the movement represents the embittered feelings of the doomed old American middle class whose values no longer count to define prestige and status and, at this stage, emerges the theme of lost traditions. This is useful in emphasising that symbolic crusades are not by definition backward-looking and traditionalist, and that d r i n k / pornography may stand in relation to claims for honour, status and prestige associated with defining ways of living. In these terms, one could say that feminism is closer to the ascendent phase of the Temperence Movement, conservatism to its decline. However, for Gusfield, these struggles all take place in relation to a background of given (middle class) value~ and style of living, and it is precisely this background that feminists seek to contest. The symbolic goal of feminism is to move the goal posts m hence the 'as if' quality of feminist characterisations of pornography. Pornography should be perceived as an assault on women's status, as if we already lived in a society where women were not denigrated. But, whether symbolic of patriarchy or its opposite, porno-

19 J.R. Gusfield, Symbolic Crusade: Status Politics and the. American Temperance Movement (Urbana, II!.: University of Illinois Press, 1972), 20.

Debating Pornography: the Symbolic Dimensions 147

graphic representations are read in this framework as emblems or metaphors, a genre of iconography that stands to the social order as a whole and represents its collective values. We are dealing here with a form of conceptualising images and issues that is inherently foreign to liberalism. Let us call it the politics of the symbolic. It is this aspect of pornography debates that links feminism and conservatism, not any spurious polemics of moralism and social purity. F e m i n i s m ' s affinity with the politics of the symbolic is witnessed in many other ways. When the Wages for Housework campaign demands two thousand years of back pay, the very excessiveness of the demand - - and its sendup of the conventions of wage-barg a i n i n g - clearly signifies that more is at stake than the literalities of inequality (however and undeniably important these are). When women appear in Take Back the Night m a r c h e s - en masse, after dark, in those areas of the city from which they are traditionally b a r r e d - this is not only a claim for better street lighting. Women's safety and women's status are bound inextricably together. Similarly what is often dismissed as feminist trivia, such as the concern with manners and language, represents the very important fact that it is precisely in the minutiae of everyday life, the spheres of meeting and eating, that the most fundamental understandings of the stuff of life and h u m a n interaction are constituted and expressed .20 Such shared interpretative moments that bind feminists together run far deeper than the apparent rifts enacted in specific debates between feminists, although the nature of this binding is seld o m articulated. It is ironic that this crucial link between feminists c a n only be formally recognised in what connects feminists and conservatives - - and in turn distances both from liberalism. Thus, although for all contenders in this debate, the issue of pornography has some symbolic significance, this runs much deeper for those who are not merely announcing their values and vision but whose visions are inherently more oriented towards seeing issues in a totalised and metaphorical mode.

20 See, for example, N. Elias, The Civilising Process (Oxford: Blackwell, 1978), Vol.l, and F. Braudel, Capitalism and Material Life, 1400-1800 (London:Weidenfeld, 1973).

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Legal Representation Finally, there is the law itself (the place of the father). It is perhaps a tribute to the dominance of liberalism that so much debate has in fact been focused around legal intervention, not merely as a practical matter but as a means of structuring all thinking on the topic of pornography. Yet there are really quite conflicting images of law at stake in these different visions. For liberalism, the law is conceptualised not only as a matter of principle but ultimately as an instrument of government, for conservatism as an expression of values and practices. This is an old conflict, fixedly rehearsed in the debate between Hart and Devlin21 on the Wolfenden Report. This debate is notable for liberalism's fundamental f a i l u r e - or triumph m in refusing to recognise the logic of the conservative position at all. Lord Devlin is presented by Hart as someone who simply fails to realise that morality, especially sexual morality, is a separate and private sphere of life. Even more ludicrous are Devlin's attempts to demonstrate the harm principle (Hitler might have overrun the country if homosexuality were not a criminal offence, especially in the army). But Hart's premise is that Devlin is arguing, however absurdly, within a positivist framework. Perhaps if Devlin had titled his book The Enforcement of Mores rather than The Enforcement of Morals it might have been clearer that he was speaking essentially from a common law perception~ of the place of law and hence a framework necessarily and fundamentally different from the positivism of Hart. Even where Hart does come closer to recognising what Devlin imagines by talk of 'invisible bonds' and a 'seamless web' of common morality as necessary to the survival of a community, he does not appreciate that what is at issue between them is the very nature of that cohesion and the quite different forms of consensus involved in their respective visions of the world. Despite Hart's recalcitrant refusal to imagine any conceptual space but his own, others have recognised this quite clearly, using

21 P, Devlin. The Enforcement of Morals (London and New York: Oxford University Press, 1965); and H. L. A. Hart. Law. Liberty and Morality (Oxford: Oxford University Press. 1963). 22 An understanding of Devlin for which I have to thank my colleague Dr. John Cairns.

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the language of sociology. MacCormick ~ links Devlin to Durkheim and mechanical solidarity, O ' H a g a n 24 to T6nnies and Gemeinschafl. Yet conservatism is perhaps most perfectly expressed within legal discourse itself in the mythology of the common law tradition which constructs law as expressing the customs and practices of a people, forms of shared social life evolving over time and forming an intangibly but powerfully interconnected whole, as Here too we find at least some recognition of feminism's concern that the laws w e have, or do not have, are important not only for any instrumental effectiveness they might claim b u t as a symbolic declaration and dramatisation of social values - - perhaps even forging new ones. As Gusfield has it: Since governmental actions symbolise the position of groups in the status structure, seemingly ceremonial or ritual acts of government [Prohibition Law] are often of great importance to many social groups. Issues which seem foolish or impractical items are often important for what they symbolise about the style or culture which is being recognised or derogated. Being acts of deference or degredation, the individual finds in governmental action that his own perceptions of his status in the society are confirmed or rejected.26 Equally, where Devlin was once so easily ridiculed b y liberal positivism for his failure to distinguish b e t w e e n public and private realms of life, the liberal of today n o w faces a feminist insistence that the personal is p o l i t i c a l - even, and particularly, in its privatisation. 27 That feminist concern with the law is as much for its signifying powers as its instrumental effects is hardly a novel point. But what is particularly interesting is the w a y this concern translates into an understanding of pornographic images, whether verbal or visual.

23 D. N. MacCormick, Legal Right and Social Democracy (Oxford and New York: Oxford University Press, 1982), 34. 24 T. O'Hagan, The End of Law (Oxford: Blackwell, 1984), 111-113. 25 See G. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon, 1986), ch.1; and A.W.B. Simpson, "The Common Law and Legal Theory", in Oxford Essays in Jurisprudence, Second Series (Oxford: Clarendon, 1973), 77-99. 26 J.R. Gusfield, supra note 19, at 11. 27 See, for example, K. O'Donovan, $r Divisions in Law (London: Weidenfeld & Nicolson, 1985).

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For when we actually look at the history of British obscenity law, we can see that there has in fact been quite a radical shift in the way sexual representations have been posed as a legal matter. Although it has become conventional in feminist discourse to turn away utterly from existing legal formulae, such as the definition of obscenity, this history can be quite informative in articulating a feminist concern. The old triumvirate of l i b e l s - seditious, blasphemous and (in the seventeenth century) obscene libel - - speaks to pornography's symbolic status rather well. With the first two especially, the target is the association of reputation and scandalous sexualities, as in pamphlets that attack the honour of the Roman Church by depicting priests engaged in unseemly activities with the penitent. Seditious libel similarly discredits the status of the sovereign. In these archaic legal stylisations, it is the figure, the personage, in the image whose status and reputation is at stake. The issue is the insulting, libelous, quality of the representation. It is not sexuality per se that is a problem, but sexuality in specific contexts, the conjunction of sacred and profane, honour and indignity. The case of Sedley2s in the seventeenth century marks a key shift for here there emerges a concern with the potential for public disturbance caused by a man blaspheming from a balcony after relieving himself on the crowd below. Described as a watershed in the struggle between the king's judges and the ecclesiastical courts, ~ in which the sovereign coalesces all attacks unto himself, it also marks a redefinition in which the problem of 'libels' is posed less in terms of due propriety and more in relation to the King's peace, his proprietorial relation to public order. It was Sedley that, ultimately, allowed the appearance of the third ' l i b e l ' - - obscene libel - - in the case of Curl.~ The key shift signalled here is the concern with causal effects on the audience, the viewers or readers of obscene material, not the subject represented. In the nineteenth century this concern with the audience took over, articulated at two different levels. For the

28 R.v. Sedley (1663) 1 Sid. 168. 29 G. Robertson, Obscenity (London: Weidenfeld, 1979), 22. 30 R.v. Curl (1727) 2 Stra. 788; 1 Barn. K.B. 29; 93 E.R. 849, which overturned R. v. Read (1708) 11 Mod. Rep. 142; on the use of Sedley (see Robertson, ibid., 22-23).

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serious offence of obscenity the Hicklin ruling of 186831 spoke of the tendency to deprave and corrupt. As notions of degeneracy and the interconnectedness of sexual and social ills gained ascendancy in the latter part of the nineteenth century, it is not surprising that the definition in Hicklin became so meaningfully centred on the inner ruin of the reader. Further, the very notion of a ' t e n d e n c y ' , it has been a r g u e d , 32 derives from utilitarian theory of legislation in which acts should be judged by their collective effects taken as a class. But, equally important were the lesser offences associated with vagrancy legislation and the early Police Acts. Many of these offences were defined in terms of indecency which emphasises the more immediate reactive and riotous potential of the audience, as in Sedley's case. Here the target was more one of external public order and safety. But, at both levels, attention had shifted a w a y from the representee to the audience, and away from the insulting quality of libel. Of these two modes of law, I would suggest, the old m o d e of libel captures some quite crucial aspects of pornography as a feminist issue - - the quality of insult, the fact that it is perceived as an attack on all women as represented by the figure in the image, the feelings of identification and vulnerability that m a n y w o m e n experience in relation to pornography as if they themselves were exposed there.~ 31 Chief Justice Cockburn in R. v. Hicklin (1868) L.R. 3 Q.B. at 371. 32 A.W.B. Simpson, "Obscenity and the Law", in M.A. Stewart, ed., Law, Morality and Rights (Dordrecht: Reidel, 1983), 228. Simpson argues that this has produced problems because it is inappropriate to build a legislative notion of the effects of acts as a class into the definition of a crime. 33 Joel Feinberg dismisses any such attempt to understand feminist concerns in terms of defamation on the grounds that it would be impraticable and also that the specifics of defamation, as currently defined, cannot convincingly be attached to pornography, viz.: (1) intention (2) specifying 'interest in the reputation'. He also raises doubts about the sense of group insult, asking rhetorically, "Are Jews defamed by the characterisation of Shylock?"--Offense to Others (New York and Oxford: Oxford University Press, 198~), 147-149. Apart from the fact that many would not accept the implied 'no' to the last question, his analysis strikes me as inappropriate to the issues raised here, first, because it is too dominated by the concerns of expediency in terms of finding a remedy and, second, because it is too focused on modern defamation law. Yet, to take a slightly different instance,

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This symbolic status of pornographic representations is, perhaps ironically, evoked far more successfully by pornography-as-violence feminists than by those who claim expertise in the field of textual analysis. Part of the success of radical feminism in capturing feminist debate, despite profound disagreements about the emphasis on violence and the use of law, is its appeal to an unarticulated understanding of pornography as an emblem and a point of condensation. But the important point here is not to stir the flames of dispute but rather to point to the fact that, for all feminist positions, this attribution of a symbolic status to pornography is a far deeper shared perspective than the current differences. The kind of law we have today is incapable of signifying this symbolic mode. Focused on the connections between image and audience, tilted towards the recognition of a limited class of 'serious' harms, modern BHtish obscenity law is inappropriate to feminism not only in its concern with sex rather than sexism but in its very asymbolic structure.

On Policy and Displacement There is yet another way in which pornography may function symbolically, this time far closer to a liberal mode of government, not as metaphor but as a form of displacement. This point is suggested by Stuart Hall's analysis of the Wolfenden era. 34 He argued that the famous 'iiberalisation' of the world of sexual conduct may best be understood in the context of post-war Keynesianism. The promotion of a demand-led economy involved a whole series of strategies whose objective was the stimulation, multiplication and intensification of desires. The atmosphere of austerity had to be replaced with an expectation that wishes could - - and should w be met. What better way to promote such a sensibility than through the world of sexuality? To put it crudely, for individuals to be al-

seditious libel, Fe|nberg has himself outlined the considerable changes that have taken place in the definition of this crime m "Limits to the Free Expression of Opinion", in J. Feinberg and H. Gross, eds., Philosophy of l.Aw (Encino and Belmont, California: Dickenson, 1975), 147-48. 34 S. Hall in National Deviancy Conference (ed.), Permissiveness and Control: The Fate of the Sixties ~sislation (London: Macmillan, 1980).

Debating Pornography: the Symbolic Dimensions 153 lowed and encouraged to discover their hidden homosexuality was like discovering a previously secret desire for consumer durables. The Wolfenden era was about the expansion of gratification in all walks of life. A broadly similar argument is made by Donzelot who links social promotion to Keynesianism. 3s Is there a comparable phenomenon today as we see a move, in Britain at least, to bring obscenity back under new controls? I think there is. One of the primary areas of concern about pornography has been public displays (as introduced in the Indecent Displays Act, 1979). It is not unreasonable to see a connection with this sort of policing and the gradually expanding definitions of public places articulated through the Public Order Act of 1986 Mutatis mutandis the politics of the women's movement. It may be that the very and vociferous articulation of disagreement on pornography distracts attention from the strategic common agreement to concentrate on a single spectacular issue in a period that has begun to speak of post-fem/nism. Postscript

I have given versions of this paper in three different academic settings. Each time aspects of the discussion have illustrated the types of problem this paper seeks to describe m the unintelligibility of feminist discourse unless mediated through liberalism. What stance was it advocating on legal intervention? Was feminism not ultimately derivative from a philosophy of human freedom? Or, if feminism had links with conservatism, on the symbolic status of images, were we committed to supporting death threats against Salman Rushdie? 36 That the paper might be advocating nothing, that it might be merely describing the phenomena of different sorts of speech, that it offers no prescriptions for deciding between systems

35 Donzelot, supra note 16 at 231-32; see also P.Q. Hirst's account of Donzelot, "The Genesis of the Social", in Politics and Power3 (1981), 77. 36 The connections between feminism, objections to pornography and calls for the charge of blasphemous libel to be used against Rushdie have been explored in an interesting paper by Susan Mendus, "The Tigers of Wrath and the Horses of Instruction", given as a seminar at Edinburgh University, 8 February 1990.

154 Law and Critique VolJ no.2 [1990] of speech seemed difficult to accept. Perhaps this too reflects p o r n o g r a p h y ' s symbolic status as a necessarily performative political subject. To a rather different audience, I should mention that I have certain reservations about the style of argumentation adopted here, especially the characterisation of feminism. To present a set of polarised positions to be mediated by a common concern with the symbolic status of pornography is still to operate with the comforts of polarisation: ... the incredible temptation to Polarise the differences ... into an opposition. . . . Difference produces great anxiety. Polarization, which is a theatrical representation of difference, tames and binds that anxiety. 37 Ultimately, these two problems of address may be countered by a consideration of tactics. To present bizarre alliances in a different form, to over-emphasise internal differences is to provide topoi for reflection and formulation not prescriptions.

37 J. Gallop, Feminism and Psychoanalysis: The Daushter's 5eduction (London: Macmillan, 1962), 93.