PHILOS 1B03 Lecture Notes - Lecture 9: Harm Principle, Marital Rape, Paternalism
1 Sep 2016
School
Department
Course
Professor
November 18, 2015
Philosophy 1B03
Pornography and Censorship
Liberty Limiting Principles
Liberty may be legally limited for the purpose of:
1. Harm Principle: Prevention of harm to individuals other than speaker (SCC)
2. Principle of Paternalism: Prevention of harm to speaker
3. Principle of Moralistic Legal Paternalism: Prevention of “moral harm” to the speaker (corruption of moral
character)
4. Principle of Legal Moralism: Prevention of immorality as such
5. Offence Principle: Prevention of offence experienced by persons other than the speaker
Three Authors
•Feinberg: Harm Principle & Offence Principle
•Sumner: Harm Principle — & substantial proof of significant harm
•MacKinnon & SCC: Harm Principle — some reason to believe some harm (similar viewpoint to the SCC and
Sumner)
Feinberg: Offence as Nuisance
Private Nuisance
•Civil (not criminal) wrong
•Use of one’s property that substantially interferes with the enjoyment or use of another individual’s property, !
Example:loud music — especially if rap “music”, smelly garbage cans
•Activity that unreasonably threatens the safety, comfort or welfare of a community
•Example: foul odours, loud noise from factory,wind turbines
— not necessarily harmful but could be offensive or annoying
Feinberg
•Dissemination of offensive pornography can be public nuisance … and rightly prohibited by law even if not harmful
•Legitimacy of restricting offensive expression function of balance between
a. “seriousness of the orphans caused to unwilling witnesses"
b. “reasonableness [& value] of offender’s conduct” (836)
Seriousness of the offence depends on:
i. Intensity and duration of offence — profound offence v. minor annoyance (intensity & duration)
ii. Reasonable avoidance
Reasonableness & value of pornographer’s conduct depends on:
i. Personal value to expressive agent
ii. Social value of expression (ie. art, law recognizes artistic depictions of sex are not necessarily limited because of
the piece of information it exhibits )
iii. Availability of alternative times and places for expression
iv. Extent to which offence is caused by spiteful motives (to offend someone because of internal spite)
— Used to describe whether a nuisance is defined enough for the law to intervene
Form of expression open to legitimate restriction on Feinberg’s criteria:
Prominent display of profoundly offensive pornographic images in store window, on busy street frequented by general
population
•Books sold in “adult stores” – offence easily avoided (Butler)
•Films & internet videos, if offensive pornographic content clearly advertised – offence easily avoided
•Political speech – high social value of political speech outweighs offence caused
•SCC accepts LEAF’s argument that violent and degrading pornography causes significant harm to women (and
children)
find more resources at oneclass.com
find more resources at oneclass.com
