Doing 'Justice' an Injustice

IT'S NOT OFTEN that course papers spark widespread campus interest and debate. One of two factors must be at work: a) some truly controversial and heart-felt subject, for example a Holocaust paper in a course on genocide, or b) an incredibly large number of people in the course, like Ec 10 or Alan Brinkley's "The American Century." When both factors are present, the potential for real intellectual fervor exists, insofar as it can ever exist in 1980s Harvard. That's why the Moral Reasoning 22 "Justice" paper, due from 800-plus erstwhile Core-hounds last Monday, merits close scrutiny.

One of the two questions offered concerned the issue of pornography legislation. It's been interesting to observe student opinions on the issue from a vantage point outside the course, especially given that the theme of the course would appear to stand for the extensive regulation of pornography.

A rough paraphrasing of the paper topic might run as follows: "Is it more just to protect 'freedom of expression' for pornographers, or to legislate limits on pornography and thereby reduce the supposedly related ills of teenage pregnancy, rape, child molestation, etc.?" Sadly, the grapevine indicates that students responded to the question with knee-jerk proclamations defending the sanctity of 'freedom of expression.'

Professor Michael Sandel chose his subject well. But from what many students have shown, the challenge he's posed hasn't brought out the real philosophy of "Justice." What it has revealed are a few subtle truths about the biases of Harvard students.

ALMOST EVERYONE I'VE heard voice an opinion on the pornography question has reiterated the same stock answer: Anti-pornography legislation, of any kind, is censorship and violates the First Amendment. Case closed.

Anyone adopting this tried-and-true response is on safe ground, hallowed by innumerable court rulings. But in the context of MR 22 it becomes a far more interesting and controversial statement.

The mainstay of Sandel's presentation is Professor John Rawls's Theory of Justice. Two of the key concepts in this work are an original position and a veil of ignorance. Having taken a Sandel course before in which these concepts were discussed, I hope the following explanation proves adequate for the discussion at hand (apologies to those of you who have just sweated through the deeper nuances).

The original position means that all laws for a hypothetical society should be made as if the lawgiver, the citizen, and everyone in between are starting at the same point. In other words, laws should come from a type of pure "legislative mind." Some form of very broad egalitarianism should be a fact, or at least an accepted ideology, within which laws are made, rather than something toward which laws aim (such as the graduated income tax).

Intimately related to this is the veil of ignorance. This concept merely extends and completes the previous thought: Not only is everyone starting at some hypothetical ground zero, but no one, including the legislative mind, knows what his position in society will be after the laws are enacted.

Now this is drastically different from the principles underlying the First Amendment, the Bill of Rights, the entire Constitution, and 99 percent of American law, the usual tools of pornography regulation (or lack thereof). That's exactly why Rawls's philosophy is new, and one of the reasons that MR 22 draws such crowds.

WITHIN THIS RAWLSIAN framework a reflexive defense of pornographic freedom becomes utterly meaningless. Why should pornography be legal before anyone knows whether he or she will be a victim of pornography?

Consider the possibilities, best case first. Once the evil is removed you could find yourself at Harvard, an undergraduate going on to a bright life of success, family, fame and fortune. In this situation legalized pornography might affect you very little.

Now let's examine a polar extreme--the hypothetical legislator becomes an avid patron of pornographic materials. The protection of pornography makes his life more 'pleasant.' He has unlimited access to whatever his eyes desire. He's glad the hypothetical veil gave him the 'right' to look at dirty pictures.

Finally, consider the other extreme. The hypothetical legislator didn't know he or she might be abducted and forced by hunger to go on the 'payroll' of a lucrative prostitution and pornography ring. He or she didn't expect to be forced to have sex daily, with strangers, under the unblinking eye of a movie camera. He or she didn't anticipate being beaten and drugged, tied up and raped, on a regular and profit-motivated basis.

These are specific examples of the general outcome of Rawl's theory applied to pornography. Thousand of variations could be constructed, especially on the last situation. And the conclusion will always be roughly the same: A few people will 'benefit' mildly from the veil of ignorance, fewer still will suffer horribly, and the vast majority won't even know the difference. This is not justice.

THUS RAWLS, AND MR 22's presentation generally, can't be convincingly used to protect pornographers' 'freedom of expression.' Students really are on safer ground to invoke First Amendment arguments to support their point, if that is indeed what they have done.

There remain many ways to attack pornography's current dependence on First Amendment protection without damaging civil liberties in the slightest. For instance, one could re-define pornography as "non-speech," not falling under the aegis of the First Amendment. But while the current wildly permissive interpretation of the Bill of Rights would never permit anti-pornography legislation, newer theories of justice, such as Rawls's and communitarianism, cannot be used to defeat such ordinances.

Perhaps students, against all odds, did find a way to defend freedom of pornography within the framework of the course. Maybe an overwhelming majority didn't actually defend the 'justice' of protecting pornography. Or maybe Harvard students just carry an incredible, almost unthinking bias toward invocation of the First Amendment in every imaginable situation.