- Is there a difference between “cultural” and moral harm?
- The Viennese Actionists: “abject” intimacies in theory and practice
- Michael Haneke’s Funny Games and some thoughts on screen violence and disgust
- A glossary!
Watched this BBC documentary the other day. Nice little introduction to how Bentham’s utilitarianism, Kant’s categorical imperative and Aristotle’s idea of ‘the good life’ play a part in comparative judicial and political systems, and ethics in criminal justice.
I didn’t expect the first proper entries on here to be quite so ponderous and dry. It is not what I intended for the blog. Over the last couple of weeks I have found myself explaining the existence of this blog, mainly to people who didn’t even ask. So perhaps I need to justify to myself why I am doing this.
Why Blog Part The First: Jargon.
I went to what might be called a ‘progressive’ institution to read for my MA. It’s a brilliant place to study if you’re interested in radical theory and working with people at the frontiers of critical theory whose work is internationally lauded. It’s horrendous if you have any interest in developing your own critical voice. I loved that the other students tended to be independent-minded and genuinely engaged with the world, but resent the parameters by which our critical voices were judged and limited. Why? Because, we were told, certain areas of critical thought are simply unfashionable. My reference for the PhD from that institution listed the avant garde thinkers I’d engaged with as though my PhD institution would demand that I’d read them. I was going Law! I still don’t even really understand what tort law is, but I’m certain the recommendation that I’d read some Brian Massumi was about as relevant as to whether or not I deserved funding as my ability to stand on my head.
The other thing I think I misjudged was how important jargon is. I used to mistakenly think that theorists used jargon because it helped them write with more precision; to communicate ideas with greater clarity. But then I discovered that every -ivity, -ative and -arity were defined differently by different theorists, who would quite often squabble over their meaning like school children and their texts are often full of veiled insults. Well, I fully intend to emulate the childishness all the way; it sounds like fun. But I don’t intend to emulate the way they write. Looking over my MA essays recently was cringeworthy. I can still see that the ideas are there, that I’ve managed to convey what I meant to the reader, more or less, but my writing is almost wilfully obscure, completely inaccessible and alien to anyone who hadn’t read the kind of theory we were taught. I remember a friend telling me proudly that after reading my work and other bits and pieces I sent him, the kind of language we used came to feel ‘natural’. A couple of friends contacted me after they read the first post saying that they were glad I was blogging, even if they didn’t think they’d understand it. Well, theory should not be inaccesible or obscure. Otherwise, it risks becomes insular and irrelevant.
So this blog is a kind of punch bag, something I can clumsily aim a fist at and miss if I need to. If you, dear reader, have stumbled across this blog and can’t for the life of you pick out what I’m on about, I’ve failed.
1. never use an obscure theoretical term without making a brief explanation of it;
2. never use a long and unnecessary word where a shorter one will do;
3. assuming knowledge often alienates. CLARIFY.
Hopefully, in the end, it’ll help me become a better writer.
As is becoming clearer to me, the more I read, the more I realise that the question my thesis is really asking is what disgust has to do with the idea of moral harm. Moral harm is a pretty unusual idea that really only crops up in obscenity and sexual offence law, and there is very little jurisprudential material on the subject in the context of British law. There is, however, an all-important article by Andrew Koppelman, ‘Does Obscenity Cause Moral Harm?’, that I wish I’d read sooner, although US obscenity law has not as yet issued any provision against the possession of obscene material, only distribution, as issued by state law. The right to free speech is of course protected in the First Amendment. There is a subtle but crucially important difference between the meaning of obscenity when applied to the ‘depraver and corrupter’ (the distributor) and ‘the depraved and corrupted’ (the possessor). The CJIA in the UK in 2008 therefore sets a different sort of precedent for moral harm because the possessor is arguably the victim of ‘corruption’, yet also an unofficial accomplice to the already-illegal distribution and therefore culpable for its effects. But what are those effects? I will blithely attempt to make my own clumsy explanation of interventions to suggest the effects here (and one aim of this blog is of course to look back one day and say, ‘o, how little I knew..’).
What does it mean to be morally harmed or corrupted? Feinberg says that ‘morally corrupting a person, that is, causing him to be a worse person than he would otherwise be, can harm him … only if he has an antecedent interest in being good.’ He also identifies three liberty-limiting principles:
(1) the offense principle: it is necessary to prevent hurt or offense (as opposed to harm) to others; (2) legal paternalism: it is necessary to prevent harm to the actor herself; and (3) legal moralism: it is necessary to prevent immoral conduct whether or not it harms anyone.
I should say right now that although my politics veer sharply to the left, when it comes to free speech I am pretty libertarian or perhaps, to rid it of the associations with Tea Parties and to be more accurate, libertine. What does not cause harm, even if it causes hurt and offence, should not be subject to censorship. But in this I refer quite exclusively to consensual sex. In the case of pornography, Mackinnon and Dworkin A (as opposed to Dworkin R, who was more interested in moral harm..) argued in the 80s that pornography was a civil rights abuse, effectively suggesting that it directly caused harm to women. From that point on, obscenity law has tended to muddle up the feminist principles of the ‘harm’ argument and women’s rights and the conservative principle of moral harm. It is why anti-porn feminists are often said to be colluding with right-wingers.
My next question might be what constitutes harm rather than offence or hurt, and does to whom is it done have any effect on stipulating which it is? Suppose a member of the BNP were employed to teach chemistry at a secondary school. Although there is no law to prevent this occurring, if revealed the BNP member would be instantly dismissed. Would this be done on the grounds of harm caused to their pupils, even if there was no reason to think they might be discriminating against, for instance, ethnic minority groups in their teaching, or because their politics were considered abhorrent by the moral majority? As I have mentioned before, disgust and abhorrence are not emotions alien to liberal and left-wingers either (and I am of course susceptible to this kind of disgust myself); they are often just less emotively vocalised, and are less utilitarian in their scope. It is not as easy, then, to define a moral harm as you’d think or to segregrate morality from free speech.
The problem, as usual, is the ‘special case’ that sexual morality throws up for both philosophers and lawmakers, and what can legitimately be said to cause damage to one’s aspirations to ‘be good’. One reasonably coherent conservative defense of censorship I have read is Harry Clor’s, but he makes the mistake of implying that sex always carries with it a particular set of moral implications that spill into other areas of one’s life and are potentially harmful. Why? Because those moral implications should be based upon heterosexual norms, and as obscenity tends to apply to material that depicts sexual deviance, the law condemns its deviance from norms as well as reflecting it: the erotic ‘is an arena in which primitive or powerfully self-centred urges and aspirations are in competition for pre-dominance … [thus] sex can be the inspiration for sustained intimacy and affection with another person– and it can be the occasion for possessiveness, hostilities and humiliation’. Really, he is invoking Kant here, who argued that sex is always self-centred because it focuses on sensation only the subject can feel in that moment. Therefore, he concluded, the other person involved in that moment of sexual congress is always an object. He also stipulated that the institution of marriage would go some way to preventing this, because it committed the couple to being sexually and monogamously bound to one another.
The result of imposing the idea of moral harm onto individuals is to invoke the ‘slippery slope’ argument I made mention of in my last post; that making allowances in the law for too much sexual deviance, even if it is harmless deviance, leads to the normalisation of deviance, straying from moral norms and will make the individual indulge in further, increasingly depraved sexual behaviour, and eventually cause physical bodily harm to a person. The supposition is that moral harm inevitably leads to actual harm when the ‘harmed’ person has, as Feinberg said, little interest in ‘being good’, or enacting sexual norms.
To bring all this heavy burbling about ethics and obscenity law to a close, I’ll briefly revisit the issue of ‘extreme’ images. The original consultation on possession of ‘extreme’ images came about because a man named Graham Coutts killed a woman called Jane Longhurst by strangulation and thousands of pornographic images of auto-asphyxiation were found upon seizing his hard-drive, and the law was created in response to a new loophole the internet threw up — to control access to images that are illegal to distribute in this country but can nevertheless be freely accessed on the internet in the privacy of one’s own home. Is this approach likely to produce greater societal ‘good’? But it leaves the question of what meaning ‘societal good’ can really have long-term when our tastes and priorities differ so greatly. Should we trust our legislators, censors and judges to know what is in our best moral interests, including the possibility of handing us greater freedoms, and make and practise law accordingly? In the case of adult sexuality, my answer is almost always absolutely not. I could also rant at length about the unregulated free market that bombards us with particular messages about sexual norms in order that we buy into particular ideas about sex and spend accordingly and how this has actually led to greater control over the individual’s sexual habits long-term in more pervasive ways, but that’s for another post…
In Halbury’s Laws of England, there is only one attempt to make a legal definition of a disgusting act:
a disgusting act is one which fills the onlooker with loathing or extreme distaste or causes annoyance
What is most striking about this definition is that it’s clear a disgusting act is defined by its ability to affects others, it is presumed, to negative effect. The idea that it ’causes annoyance’ implies that such a sight is disruptive and intrusive. There is something of the spectacle about it. I have often thought that clichéd statement of outrage I have occasionally heard my mother use to describe me, “She’s making a spectacle of herself!”, is oddly appropriate for what it describes. Usually it refers to someone outstepping the norms of what we expect to bear witness to and they become visually memorable; a spectacle*. A disgusting act is therefore only a disgusting act because it is a visual spectacle that is considered or made in some way public, and can be said to offend public decency. The eye of the law can see, but it cannot necessarily bear witness to or feel. It is not, unlike a defendant’s experience, epiphenomenal. That is, the eye of the law can see only one primary phenomenon where many secondary phenomena may be occurring simultaneously. Interpretation of visual evidence is dependent merely on what a jury can see and what values they apply to what they see.
In other words, there is a sort of hegemony of the senses in law, a privileging of sight over other ways of analysing evidence. In R v. Brown (which I will come back to plenty..), a home-made recording of sexual activities that were later used to convict those depicted in them of sexual assault, despite the consensual context of the acts, was crucial to reaching a guilty verdict. The judge quipped that the video footage of the men’s consensual sexual activities were sufficient evidence against them because ‘seeing is believing’. Interpretations of the activities that happened that night were therefore swayed by using the recording as visual evidence, which in the eye of the law becomes incontestable; but the video tape also acted as a kind of ‘objective’ alibi against the testimonies of the defendants. It is clear, however, that the verdict reached was ideological and value-laden, and the role of the eye of the law in matters of obscenity and disgust is to apply value to what it sees. Furthermore, when the case was appealed, in the House of Lords decision it was said that:
“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is ‘uncivilised’.”
It is clear that no matter how the visual evidence was interpreted, the general principle of pleasure derived through pain, even in private between consenting adults, is the problem rather than any physical harm caused. There are various ideological reasons as to why parliamentarians think these are practices society should be morally protected from that I will undoubtedly write about in far more detail later, but briefly, I think this statement in the HoL covers at least two. There is the ‘slippery slope’ argument (the idea that unconventional sexual practices lead to further and deeper depravity, violence and immorality), the ‘harm’ argument (in obscenity law — and it’s worth bearing in mind that the ‘extreme’ porn clause only partially depends on definitions of obscenity — it’s the idea that deviation from sexual norms is degenerative and potentially damaging to societal harmony and good). The video tape’s existence, however, meant that the judgement could be reached within the eye of the law and therefore fall within an objective judicial gaze.
More importantly, what differentiated R v. Brown from a case that followed, R v. Wilson, was the ability of the eye of the law to gaze via an ‘objective’ alibi. In R. v. Wilson, the couple’s testimony that the branding was done for art’s sake rather than for sexual pleasure (although they admitted sadomasochistic tendencies), along with its being carried out in the privacy of their home, was taken as read in their appeal, and the conviction overturned. Additionally, the wife was held to be a victim rather than, as in the case of the men taking a submissive role in R v. Brown, an accessory to assault. However, there is also the mitigating factor that they were husband and wife. In R v. Brown, the defendants were a group of homosexual men.
In R v. Wilson, the court ruled that:
Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution. Accordingly we take the view that the judge failed to have full regard to the facts of this case and misdirected himself in saying that Rex v. Donovan  2 K.B. 498 and Reg. v. Brown  1 A.C. 212 constrained him to rule that consent was no defence.
It is easy to see that the eye of the law is an unreliable witness and that the definition of a disgusting act is easily saturated in ideological interpretation. But I want to briefly revisit the idea of the hegemony of the senses in law. Is disgust really experienced merely through sight? Is this the definition of disgust that can be best relied upon for a jury in a contemporary society to interpret evidence? One problem with previous attempts by legal theorists to wrangle with the role of disgust in law is that they tend to really be critiques of the ways in which disgust has been intergrated into conservative value systems and lawmaking rather than grappling with what the emotion itself really is and how it’s experienced, and how that affects the law’s construction. Of course, disgust is hardly an emotion exclusive to moral conservatives. Most recently, I hear the word used by friends primarily in connection with the Liberal Democrat party.. Needless to say, I don’t think I have answers yet. However, I know it’s not enough for me to merely deconstruct. To say, well, this is the law and I’ll point out its flaws but it’s still the best that can be achieved, is just not good enough. The gift of writing within the framework of legal theory is the ability to make practical suggestions of ways in which lawmaking might change, but it is also a curse. It gives my friends, colleagues and the students I teach the ability to quite legitimately ask: “That’s all very well, Alex, but what would YOU do?”
* Why the phrase usually refers to women is a whole different ball park…
I’m certain every student who’s ever started a PhD struggles to find their entry-point, their starting block. I should start by chronicling how this project has ended up being the one I have — possibly foolhardily — committed to carrying out for the next three years.
Why on earth would you want to write about disgust?, I’m often asked. Isn’t it, well, disgusting? Doesn’t it involve looking at disgusting things?
In answer, yes. Yes, it does. But in truth, disgust and the abject have been part of my various brain garglings for a number of years. I wrote about abject women as an undergrad in the cosy context of the British Romantics, de Sade and Edmund Burke’s pontifications on the difference between the sublime and the beautiful. I wrote about decadence and degeneration. I quoted the particularly filthy bits from James Joyce’s famous letters to his lover Nora when I wrote about Ulysses. I loved Jonathan Swift’s scatological poems. My first MA essay, two years later, ended up being about neo-burlesque and followed the same formula as the now-familiar critique of burlesque as no longer having much subversive potential. I read Mary Rosso’s excellent book, The Female Grotesque , and took away from it the incoherence disgust can grant the body, particularly the sexual body, and particularly the female sexual body, if it is not normatively constituted or adapted to appear normative.
Biographically, I have always been drawn to certain things that many people consider disgusting, As a kid who loved her ability to not ‘get grossed out’ by much, I suppose that has stuck. I am not squeamish. I have a few fears, but very few squicks. I acknowledge that feelings of fear, discomfort and disgust can be desirable, if not exactly pleasurable. The best example I can give is the horror film (about which much more later). Film critics have spent decades trying to assess why gorefest horror movies can easily draw an audience, some arguing that the audience enjoys taking the position of sadist, relishing the suffering of whoever the film’s victims are. Others argue that they are accessing masochism — identifying with the film’s sufferers and desiring to be pushed to a place of such discomfort that it is close to unbearable. The experience of wincing, hiding behind one’s hands, moaning and whimpering; that is all part of the horror movie’s pleasure.
When it came to writing a PhD proposal, again I found myself drawn to ideas and concepts around disgust. But meanwhile, in the year I completed my MA, I was working with Backlash and the Criminal Justice and Immigration Bill became an Act, outlawing the possession of ‘extreme’ pornography.
There are three elements to the offence. An image must come within the terms of all three elements before it will fall foul of the offence.
Those elements are:
1. That the image is pornographic;
2. That the image is grossly offensive, disgusting, or otherwise of an obscene character, and
3. That the image portrays in an explicit and realistic way, one of the following extreme acts:
a. An act which threatens a person’s life;
b. An act which results in or is likely to result in serious injury to a person’s anus, breast or genitals;
c. An act involving sexual interference with a human corpse,
d. A person performing an act of intercourse or oral sex with an animal (whether dead or alive),
and a reasonable person looking at the image would think that the people and animals portrayed were real.
Among the debates raging over whether pornography incites violence or incites attitudes that legitimise violence, there was far less discussion about the part of the clause I am most interested in: the issue of moral protectionism, or protection simply from merely feeling disgust that other adults might find pleasure in activities that are not to one’s taste, and began to question the intersection of disgust and law, particularly when applied to sexuality. How much are our moral parameters affected by our emotional responses? Do these emotional responses have a legitimate social function or convey a particular kind of wisdom? Are they important enough that legislation should take them into account? If — as has been the case with homosexuality — moral parameters are subject to change, should what is considered disgusting be subject to regular scrutiny? And finally, if we do not want to do away with the legal role of disgust altogether, what part could it play in constructing contemporary ideas of morality?
So my proposal started coming together. And now, roughly a year later, this particular piece of lawmaking is the basis for my first case study.