Language, Discourse, Society

General Editors: Stephen Heath, Colin MacCabe and Denise Riley

Recent titles include:

Stanley Aronowitz
THE CRISIS IN HISTORICAL MATERIALISM
SCIENCE AS POWER: Discourse and Ideology in Modern Society

John Barrell
THE BIRTH OF PANDORA AND THE DIVISION OF KNOWLEDGE

Norman Bryson
VISION AND PAINTING: The Logic of the Gaze

Lesley Caldwell
ITALIAN FAMILY MATTERS: Women, Politics and Legal Reform

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TECHNOLOGIES OF GENDER: Essays on Theory, Film, and Fiction

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THE DESIRE TO DESIRE: The Woman's Film of the 1940s

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FEMINISM AND PSYCHOANALYSIS: The Daughter's Seduction

Peter Gidal
UNDERSTANDING BECKETT: A Study of Monologue and Gesture in the Works
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MARGINAL MEN: Edward Thomas; Ivor Gurney; J R Ackerley

Ian Hunter
CULTURE AND GOVERNMENT: The Emergence of Literary Education

Ian Hunter, David Saunders and Dugald Williamson

ON PORNOGRAPHY: LITERATURE, SEXUALITY AND OBSCENITY LAW

Andreas Huyssen
AFTER THE GREAT DIVIDE: Modernism, Mass Culture and Postmodernism
Colin MacCabe (editor)
JAMES JOYCE AND THE REVOLUTION OF THE WORD
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Christian Metz
PSYCHOANALYSIS AND CINEMA: The Imaginary Signifier

Jean-Claude Milner
FOR THE LOVE OF LANGUAGE

Jeffrey Minson
GENEALOGIES OF MORALS: Nietzsche, Foucault, Donzelot and the Eccentricity
of Ethics

Angela Moorjani
THE AESTHETICS OF LOSS AND LESSNESS

Laura Mulvey
VISUAL AND OTHER PLEASURES

Douglas Oliver
POETRY AND NARRATIVE IN PERFORMANCE

Michel Pecheux
LANGUAGE, SEMANTICS AND IDEOLOGY

Denise Riley
AM I THAT NAME?: Feminism and the Category of 'Women' in History
POETS ON WRITING: BRITAIN 1970-91

Jacqueline Rose
THE CASE OF PETER PAN or THE IMPOSSffiiLITY OF CHILDREN'S FICTION

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POLffiCS AND CULTURE: Working Hypotheses for a Post-Revolutionary Society

David Trotter
CIRCULATION: Defoe, Dickens and the Economics ot the Novel
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Jean-Marie Vincent/translated by Jan~es Cohen

ABSTRACT LABOUR: A Critique

Peter Womack
IMPROVEMENT AND ROMANCE: Constructing the Myth of the Highlands
ON PORNOGRAPHY
Literature, Sexuality and Obscenity Law

Ian Hunter
Senior Lecturer, Division of Humanities,
Griffith University, Australia

David Saunders
Senior Lecturer, Division of Humanities,
Griffith University, Australia

Dugald Williamson
Senior Lecturer, Division of Humanities,
Griffith University, Australia

M
MACMILLAN
©Ian Hunter, David Saunders, Dugald Williamson 1993

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Contents
Preface viii

Acknowledgements Xlll

1 An Introduction 1

2 The Pornographic Field 12

3 Nineteenth-Century English Obscenity Law 57

4 Literary Erotics 92

5 Twentieth-Century English Obscenity Law 135

6 The Limits of Law Reform 162

7 United States Obscenity Law 198

8 Feminism and Law Reform 229

Notes 247

Bibliography 265

Table of Cases 275

Table of Statutes 278

Reports and Parliamentary Debates 280

Index 282
Preface
The reader who picks up a book on the history of the policing of pornogra-
phy has every right to demand of its authors a clear statement of their
approach to the subject. After all, few subjects of historical and cultural
enquiry are more contentious and leave less scope for detached observation
and disinterested analysis. The development of research into pornography
and its legal regulation obeys none of the comforting models for the evolu-
tion of scholarly fields. It is characterised neither by the patient accumula-
tion of historical facts and progressive refinement of disciplinary frame-
works, nor by the sudden and momentous theoretical breakthrough that
grounds the object of enquiry in a revelation of its fundamental conditions.
Knowledge of pornography is too deeply embedded in its auto-erotic use, in
the medical and pedagogical categories of its legal regulation, and in cam-
paigns for its aesthetic emancipation or moral eradication for the researcher
to be able to approach it in a Kantian manner as the universal subject of
reason. From D. H. Lawrence's attempt to distinguish erotic art and pornog-
raphy to the feminist denunciation of Lawrence as a pornographer, from the
specification and regulation of pornography as a social harm by jurists in
the 1860s to the debunking of this claim by their liberal colleagues in the
1960s, from this debunking to the reinstatement of the social harmfulness of
pornography as the instrument of sexism, knowledge of pornography has
been inseparable from the competing agencies of its use and regulation, its
discrediting and valorisation. For this reason all attempts to provide a
general statement of the truth of pornography - whether to discover its
origin in the puritanical repression of healthy sexuality, its essence in the
patriarchal objectification of women, or its rightful place in the sphere of
private morality or in that of literary emancipation - must be greeted with
a degree of scepticism. Invariably and perhaps inevitably, such statements
are driven by particular interests formed in the heterogeneous spheres of
private erotics and public policy, cultural projects and governmental pro-
grammes. For the same reason, however, strict limits are imposed on the
scope of sceptical enquiry. In acknowledging the interested character of
various reasonings about pornography, we can neither claim to see through
them in a purely disinterested manner to a new truth, nor indeed suspend all
judgement and wait for the marching orders of history.
We have responded to this problem in a number of ways. In the first place
we have not attempted to overcome the interested character of knowledge in
the field but have treated it as establishing limits and parameters for our

viii
 Preface ix

own investigations. In this regard, the speed with which the liberal debunk-
ing of the Victorian conception of the harms of pornography has itself been
debunked by the feminist reinscription of the older conception in a new
form has proved salutary. These shifts are exemplary of the circumstantial
character of pornography as an object of knowledge and a target of policy.
For this reason we have not attempted to describe pornography in terms of
a single origin, underlying essence or general function. Instead, we have
concentrated our attentions on the shifting historical circumstances in which
it has emerged as an eroticising instrument, a saleable commodity, a crime,
an object of governmental concern and medical regulation, an ethical occa-
sion or an aesthetic phenomenon.
This methodological strategy has in its tum alerted us to the dominant
rhetorical forms through which books on pornography address their readers
and their object. Whether in the name of 'man's' long-repressed erotic
being, or in the name of a marginalised feminine desire, these books find
their voices in a speaking for that which has been silenced, a discovery• of
that which has been hidden. This rhetoric disables analysis in several ways.
First, it activates the 'fable' of repression, as it is termed in Michel Foucault's
work on the history of sexuality. In the wake of this work, we must suspect
that the so-called 'sllence' surrounding sexuality exists only in order to be
endlessly broken, our 'hidden' sexuality being in practice a stalking-horse
for a remorseless engine of discovery and industry of publication. Repres-
sion undoubtedly occurs, but it is also a tactic within a confessional mecha-
nism, a tactic for getting us to treat sexuality as the great secret of ourselves.
Most books on pornography treat sexuality in just this way, relaying the
mechanism of confession rather than describing it.
Second, in purporting to break the silence surrounding sexuality the
authors of such books lay claim to what Foucault has called 'the speaker's
benefit'. This is the claim to a certain moral authority flowing from the
courage displayed in breaking taboos, transgressing prohibitions, and speak-
ing up for the silenced. No doubt this helps explain the portentous and
momentous aura surrounding much of the writing on pornography, as well
as the immense reservoir of indignation that feeds into it. Unfortunately, it
also suggests why so much of this writing is basically uninformative. When
the 'silence' of sexuality is in fact a device in a ritual for getting people to
break it, little is achieved by speaking up, except to draw attention to one's
own claim to moral courage. The level of moral heroism in writing about
pornography has thus tended to be inversely related to its informational
content.
Third, the rhetoric of speaking out is typically accompanied by the
textual strategy of copious quotation from erotic and pornographic works.
X Preface

Indeed, there is a sense in which such books as the Kronhausens' Porno-

graphy and the Law, Stephen Marcus' The Other Victorians and Andrea
Dworkin's Pornography are as much anthologies of pornographic writing
as they are analyses of it. The rhetoric of taboo-breaking that dictates
copious quotation simultaneously deprives these books of the intellectual
capacity to subordinate the excitatory power of pornography to the explana-
tory power of its analysis. This is what makes their reading such an ambigu-
ous experience.
Cognisance of these rhetorical problems goes some way towards explain-
ing why our book takes the form that it does. We eschew the confessional
mode and mechanism in order to constitute sexual confession itself as an
object of historical description and cultural analysis. We have done our best
not to be courageous or indignant in speaking of pornography so that we can
speak of it in a more historical and descriptive manner. The reader will find
very little direct quotation of pornographic writing here but a good deal of
quotation from writings about it. While this no doubt makes for a less
exciting book it also, we believe, makes for a more informative one.
Our central reorientation of existing scholarship, however, lies in the
positive character of our descriptions of pornography and its regulation.
'Positive' does not mean 'approving'. It refers to our attempt to describe the
object in its own terms, as the autonomous product of irreducible historical
conditions. By contrast, pornography has to date been analysed in a largely
negative manner, that is, as a by-product of history, a phenomenon pos-
sessed only of a half-existence and that due solely to the malfunctioning of
more fundamental forces and mechanisms. Psychologists have treated it as
a perversion of the primary drives, a failed sublimation brought about by a
too-rigorous application of norms and laws. For cultural historians porno-
graphy originates in epochs of repression which, in refusing the social
expression of desire, drive it underground where it assumes mutant forms.
And for their part literary critics treat pornography as the product of the
aesthetic failure to mediate fantasy and real experience, the sensuous and
the moral - a failure manifest in the obsessive detail of pornographic
description accompanied by skeletal plots and characters.
In departing from these well-worn accounts we shall investigate porno-
graphy as a historically specific practice, not as a distortion of 'man's'
timeless erotic being. This practice did not originate from a predictable
collision of the drives with society's norms and laws. Rather, it emerged
unforeseen from the unplanned interactions of a series of historical forces.
In the studies that follow, four factors in particular play preeminent roles.
First, the technology of confession and ethical self-scrutiny which, it is
argued, permitted an ever-increasing number of individuals to treat their
 Preface xi

self in a new manner as the harbinger of a secret and hence endlessly

discoverable sexual desire. Second, the communications technology of
literacy and the printed book. It was this which allowed an otherwise
esoteric and religiously -based interrogation of the 'flesh' a broader dis semi-
nation as a profane auto-erotics in book form. Third, the legal regulation of
obscenity. This displaced the religious codification of confessional erotics
when, at the beginning of the eighteenth century, the printed book permitted
this erotics to find a new home - and a new use - in a literate and reading
public. Finally, a series of later and less visible 'governmental' policings-
medical, pedagogic, welfarist and aesthetic - that have constituted porno-
graphy as a social problem, their norms coming to inform the legal regula-
tion of obscenity as a social harm.
Pornography thus does not have a single point of origin in the exemplary
dialectic of body and mind inside the human subject. It appeared on a
variety of surfaces - as an instrument of desire, an ethical failing, a crime,
a medical problem, a pedagogic threat, an aesthetic challenge and occasion
- when the contingent interaction of the factors just listed gave birth to a
novel historical phenomenon: biblio-erotics or book sex. Book sex is not the
negative symptom of an incomplete human subjectivity; it is the positive
artefact of a complex cultural technology and as such marks the addition of
a particular practice of life to the human repertoire.
This last point enables us to acknowledge that we have written this book
not as amanuenses for the universal subject but as men. Today it might
seem impossible for men to write about the regulation of pornography
except in defiance of or in obeisance to feminist analysis. We adopt neither
posture. We acknowledge the significance of our gender as writers not in a
spirit of confession but in order to situate our studies in the context of an
important historical fact: once we see that biblio-erotics is not an attribute
of human subjectivity per se but the result of the historical formation and
distribution of a specific erotic technology, then it is impossible not to see
that this distribution has been overwhelmingly skewed towards men and,
moreover, towards literate men. This is not to mark a deficiency in the
masculine psyche; it is to observe that the repertoire of modem western
masculinity has been decisively informed by the historical transmission of
the auto-erotic techniques of book sex. It is the transmission of these
techniques that forms the proper object of legal, ethical and social regula-
tion; the male psyche is only a dependent reality.
Since the late nineteenth century feminism has been properly concerned
with the consequences of this masculine auto-erotics for women. This
concern - together with the legal, medical and pedagogical categorisations
on which it has drawn - has been the single most important factor in the
Xll Preface

modem problematisation of pornography. It is no detraction from this

concern to conclude by noting that ours is not identical.

I. H., D. S., D. W.
Acknowledgements
The debts we have incurred during the course of this work have been largely
institutional. Its origins lie in our teaching in the erstwhile Forms of Com-
munication programme in the Division of Humanities at Griffith Univer-
sity. To the students of this programme whose presence obliged and whose
interest inspired our initial work on the relations between literature, sexual-
ity and the law, our thanks are due. To Waddick Doyle, Jenny Freeman and
Bronwyn Hammond, who at different times worked with us as research
assistant~, we offer our particular gratitude. We should also like to record
our appreciation of the work done by the Division's general staff who with
good nature and great efficiency have worked on the typescript at various
times between 1986 and 1991. The staff of Griffith University's Inter-
Library Loan service have been similarly helpful over this same period.
Finally, we should like to acknowledge the material support of the Division
and the University which has made the writing of this book possible.

Xlll
1 An Introduction
We can set the scene with two citations. The first is well known, being taken
from Samuel Pepys, a government official of some standing and a posthu-
mously famous diarist. Writing early in 1668, Pepys describes his encounter
with what we now call pornographic literature:

Thence homeward by coach and stopped at Martins my bookseller,

where I saw the French book which I did think to have had for my wife
to translate, called L' escholle de Filles; but when I came to look into it,
it is the most bawdy, lewd book that ever I saw, rather worse than putana
errante - so that I was ashamed of reading in it ...
Thence away to the Strand to my bookseller's, and there stayed an
hour and bought that idle, roguish book, L' escholle des Filles; which I
have bought in plain binding (avoiding the buying of it better bound)
because I resolve, as soon as I have read it, to burn it, that it may not stand
in the list of books, nor among them to disgrace them if it should be found

Lords day. Up, and at my chamber all the morning and the office,
doing business and also reading a little of L' escholle des Filles, which is
a mighty lewd book, but yet not amiss for a sober man once to read over
to inform himself in the villainy of the world . . . We sang till almost
night, and drank my good store of wine; and then they parted and I to my
chamber, where I did read through£' escholle des Filles; a lewd book, but
what doth me no wrong to read for information sake (but it did hazer my
prick para stand all the while, and una vez to decharger); and after I had
done it, I burned it, that it might not be among my books to my shame;
and so at night to supper and then to bed.

(Pepys, 1976,IX,pp. 21-2,57-9)

Our second text is assembled from the confessions of William Chidley, an

obscure Australian commercial artist turned sex reformer. Completed in the
first decade of the twentieth century, Chidley' s confessions also record
pornographic encounters. However, these are described by a figure who did
not exist prior to the nineteenth century - the aspiring sexual healer who is
himself sick with sex:

Martin liked reading Reynolds's Mysteries of Paris in which girls, naked

1
2 On Pornography

as the moon, danced in perfumed apartments before young, handsome

and rich men of that and other cities. These scenes affected me with
an odd mixture of feelings - a sense of Divine beauty and youth (the
naked girls with long hair waving in the moonlight) - and a sense of
something evil, akin to the sensations I knew now, alas, if only feebly and
pervertedly. This same boy lent me Smollett's Roderick Random. I soon
learnt where to find lewd passages to excite me while I was abusing
myself. They were not very lewd- that was not necessary. I gloated over
trifles, even looked up words in a lexicon hoping to find some reference
to a woman's vulva. The latter became a mysterious and unattainable
prize ...
Mother took the house in Dover Street Richmond: it was there that she
warned me against self-abuse. I shall have to speak again of indecent
cards- 'French cards' we called them- and their influence.
One day when I was abusing myself in a urinal the semen came for the
first time. I knew so little that I thought I had injured myself. It gave me
what might have been a salutary tum, had not the habit now hold of me
past hope.
I grew stiff in the neck, my spine clogged, and I had unholy sweats.
The pupils of my eyes were like pin-heaqs - so small and weak I could
not look at the sun, or a healthy lad or lassie in the eyes ...
In six months Williams taught me all that was useful to him, then he
left me to my own devices. But it just suited me also, as it gave me time
to read novels during his absence, which was nearly all day. So for five
years, when Mother and Father thought I was learning a good profession,
I was reading novels, drawing caricatures - and abusing myself.

(Chiilley, 1977,pp. 38-9,45,46)

Each of these passages represents a particular configuration of two of the

factors - literature and sexuality - which, together with law and policing,
constitute the object of our enquiry. It would be unwise to assume, however,
that the relation between these factors in the cited passages is immediately
clear, or that the path to such a difficult and problematic object as porno-
graphy lies open before us.
Thirty years ago, in the 1960s - that period of cultural liberalisation
which we are told produced a new attitude to obscenity and less restrictive
laws governing its circulation - these things were clear, or so it seemed.
Pornography, it was discovered by a host of literary critics and psycholo-
gists, formed part of 'man's' attempt to give literary expression to the truth
of his sexuality. Pornography, like sex itself, had been repressed and stig-
 An Introduction 3

matised for centuries but society was now mature enough to accept the truth
about itself told by the literature of sexuality. Driven perhaps by the heri-
tage of Puritanism, or by capitalism's will to harness sexual energy to its
own economic ends, or perhaps simply by the fear of sex itself, the law from
this point of view had imposed itself in an area that was the proper preserve
of the artist or the therapist.
Even reforming jurists accepted this view. True, the centuries of repres-
sion had distorted sexual instincts and pornography could be seen as the
revenge of sex on the society that had injured it: a perverse, fantasmatic,
even pathological reflux expression of true sex. The law might, therefore,
have to continue to draw the line of prohibition around pornography, or at
least restrict access to it. But now it would do so with the help of literary
critics and psychologists whose project of fostering the true literary expres-
sion of sex would surely lead to the withering away of both pornography
and its legal regulation.
As for our historians of culture, they provided this account of repression
and liberation with a periodisation and a telos. They assured us that from the
relative freedom of sexual expression in Elizabethan England flowed a
literature of sexuality both frank and healthy, a state of affairs which
continued well into the seventeenth century. With the rise of Puritanism,
however, and successive waves of stigmatisation and legal repression dur-
ing the eighteenth and nineteenth centuries, sexual expression was driven
underground where, divorced from reality, it went bad, finally to re-appear
in the form of the pornography of perversions.
It is with regard to just this historical framework that the relation between
our two cited passages would be typically understood. Donald Thomas
(1969, pp. 26-7; 1972, p. 55), for example, regards L' Ecole des filles as an
open and realistic portrayal of the joys of sex, and Pepys' reading of it as
characteristic of the uninhibited period prior to the Puritan revival - the
revival which produced the fantasmatic and perverse pornography of the
Victorians. Chidley' s pathological auto-erotic use of lewd literature, on the
other hand, would be fitted neatly into the analysis of the cultural repression
and perversion of sexuality that we find in Peter Gay's (1984, pp. 328-402)
account of Victorian pornography. Of course, on our side of Chidley - seen
as a late victim of a repression he struggled to overcome - lay the dawn of
a free, realistic, and joyous erotica into whose light we were about to step.
That bright day did not arrive. Indeed, the kindest words one could
use to describe the state of the erstwhile liberal intellectual consensus on
obscenity - until so recently the vehicle of sexual enlightenment and his-
torical progress- would be confusion and disarray. Far from being a sign of
cultural backwardness, the concept of obscenity has today resumed its place
4 On Pornography

as a central category in the analysis of pornography. Today, in some circles,

pornography is less likely to be regarded as an expression of the truth of sex
than as a harm or discrimination perpetrated by a systematic campaign to
cast women as sexual, according to the diktat of male interest, imagination
and desire. The idea that pornography constitutes a 'social harm' and is
hence eligible for legal suppression- the very idea that the 1960s liberals
and libertarians sought to laugh out of court as a Victorian prejudice - is
once again gaining ground.
What is more, the project through which literary critics, psychologists,
and jurists sought to protect true erotic expression by legally distinguishing
it from pornography is itself under attack. The remark of an English mag-
istrate that the 'most splendidly painted picture in the Universe might be
obscene'- once a benchmark for ignorance and illiberalism- now finds a
ready if somewhat discomforting echo in those who seek to bring erotic art
(and advertising) within the sphere of obscenity law in order to combat
sexism.
This reversal in the axis of progressive politics is a salutary lesson for
anyone tempted to follow the stars of cultural enlightenment and historical
progress. It was brought about, of course, by the rise of feminism and is the
result of an attempt to include pornography in the general analysis of sexism
and thereby target it for eradication, or at least radical transformation. This
reversal- as disorienting as it was rapid- provides an avenue to the central
concerns of these studies. This is not because we have adopted a feminist
strategy for dealing with pornography. Rather, it is because the fact of the
reversal itself- in its very speed and apparent completeness - suggests the
instability in the erstwhile consensus, without necessarily signifying the
truth of the position that seeks to displace it. Under these circumstances the
question to formulate is not: What was wrong with the liberal approach to
pornography? or: To what extent is the feminist analysis correct? It is
rather: What is it about the field in which pornography appears as an object
of knowledge and regulation that permits such sudden reversals of ethical
and political polarity?
Our central concern is therefore not to provide yet another description of
what pornography is - whether expression of sexuality or armature of
sexism. Rather it is to describe the material circumstances in which pornog-
raphy has assumed a variety of forms - for example, as a device of sexual
intensification, as a problem of conscience, as a pathological agent in the
sphere of sexual medicine, as an aesthetic category, as a species of illegal
conduct - without deciding in advance, or on general theoretical grounds,
which if any of these forms represents the 'truth' about pornography.
This epistemological reserve is more a sign of the circumstances in which
 An Introduction 5
we find ourselves than of a praiseworthy modesty on our part. In a field so
multi-faceted, so unstable, so prone to polar reversals, a concern with the
field itself comes as a tactical imperative rather than as philosophical nicety.
In such a field the will to speak the truth and be on the right side becomes
a disabling liability. We can, however, specify our concern with this field in
terms of three interests which the reader will discern as themes running
through the studies which compose this book.
First, a theoretical interest. If erotic art and pornography are representa-
tions of an abiding human sexuality, how is it that for us they have so
quickly and readily been denounced as lies and transgressions? Can we
really afford to think that the alliance of psychologists, jurists and literary
critics which invaded the press and the courts in order to defend the freedom
of erotic expression was simply mistaken, duped by a naive politics, a
cunning libido or an exploitative book trade? No doubt this would be a
comforting thought, if we were among those now sure they are on the right
side. But is it not the case that what is complained of in current denuncia-
tions of erotica and its liberal defenders is less the accuracy of pornography
(as a representation) and more its harmful normalising effects (as a con-
duct)? And is it not true that the feminist campaign against pornography -
whether it dreams of displacing pornography altogether, or of having it
conform to the contours of 'women's pleasure'- is a campaign to dissemi-
nate new norms of sexual conduct and pleasure? In other words, can we not
begin to explore the possibility that what pornography confronts us with is
not a representation of sexuality at all - true or false - but a definite
apparatus for transmitting norms of sexual conduct and feeling relayed in
certain techniques and practices?
When Pepys' secret little book, L' Ecole des filles, was translated into
English at the end of the seventeenth century it appeared under the title The
School of Venus: or, the Ladies Delight reduced into rules of practice. This
title was more than usually accurate. As we shall see in more detail below,
drawing on a powerful sexualising machinery which had formed around the
religious direction of conscience in relation to sins of the flesh - a machin-
ery easily transposed into the erotic register - this book transmitted a
rhetoric of sexual postures, a lexicon of erotic names, and a thematics of
initiation and sexual discovery. What Pepys found in L' Ecole des filles was
not a true or false representation of some general human sexuality but an
incitatory manual of norms, techniques, and fantasy scenarios for acquiring
and putting into practice a very specific form of sexual conduct.
If this is the case, it is not difficult to detect a certain naivety in Thomas'
attempt to rescue this book from the category of pornography on the basis
of its 'realism'. But this does not mean that it is sufficient to denounce the
6 On Pornography

work as pornography by alleging its failure to provide a true representation

of sex or by pointing to its fantasmatic objectification of women. We shall
argue that the words and fantasies of such a work do not exist in a relation
of (mis)representation to a true sexuality. Rather they form part of an
ensemble of techniques, practices, and institutions which, during the seven-
teenth century, was bringing a definite form of sexuality into being, in part
through the distribution and consumption of certain books. Once we cease
to treat pornography as having a purely negative relation to sexuality- as its
transparent representation or its tendentious or pathological distortion - we
can begin to explore the alternative possibility that it has formed part of an
apparatus that in a positive sense directly installs interests and capacities for
actual forms of sexuality.
Second, a historical interest. If we look at historical treatments of por-
nography, it is not hard to detect the presence of a model which our cultural
historians had earlier applied to the history of sexuality. According to this
model there is first a golden age in which - despite differences as to its date
- erotic texts and pictures reconciled the unrestrained joys of fantasy and
the sobering limits of experience, thereby achieving the difficult mediation
of what desire demands and social norms allow. In this harmonious state,
where desire accommodates itself to norms while norms are softened to
receive the shape of desire, erotic expression is in touch with 'man's' true
sexual being or with the forces shaping this being over time. Then comes
the split. Owing to a too-violent expression of desire or a too-repressive
imposition of social norms, fantasy is divorced from experience and driven
underground, finding a distorted expression as pornography. Alternatively,
it is possible to provide the golden age with a more synchronic location, as
Peter Gay (1984, pp. 71-168, 328-402) does when he contrasts the inclu-
sive and balanced erotic expressions and gestures of his high-bourgeois
Victorian couples with their repressed and distorted counterparts in Victo-
rian pornography. Either way, it is this model which allows Thomas (1972,
pp. 54-60) to treat The School of Venus as a late flowering of erotic
expression; and for Gay to describe the desolating winter of Victorian
pornography as the result of a failed mediation that left erotica both too
repressed and too uninhibited.
No doubt this history with its promise of better erotic times to come- or
perhaps already within reach - has its comforts. This should not stop us
asking some questions of it. In the first place, is it possible to conceive of
pornography in terms of a single historical reality, into which it is born as
the result of the tension between fantasy and experience, private desires and
public norms? Consider again the case of The School of Venus. That this
book should have emerged in the sphere that we now call pornographic was,
 An Introduction 7

we shall argue, the contingent outcome of events taking place in quite

disparate departments of existence. Without anticipating too fully the inves-
tigations which follow, we can point to: the transposition of a sexualising
rhetoric, lexicon, and fantasia - developed in the context of religious con-
fession - into an auto-erotic register; the emergence of printing, the book
trade, and print literacy which permitted the dissemination of the self-
eroticising concerns and techniques beyond their initial religious and court
milieus into the world of the urban middle classes; and, alongside these, the
development of legal (and later medical and pedagogical) forms of regula-
tion which sent this dissemination down particular social channels, thus
permitting sexualities differentiated by gender, class, and age to emerge.
In the second place, given that these separate historical developments do
not appear to obey the one dialectical logic of desire and norm, fantasy and
experience, is it possible to punctuate the history of pornography by divid-
ing periods of successful from periods of failed reconciliation? Is the fact
that William Chidley's auto-erotic use of pornography was deeply patho-
logical, while Pepys' was not, indicative of the difference between an epoch
of erotic expression incapable of integrating desire and norm and one that
could? Again the answer has to be in the negative. We shall see that by
Chidley's time not only had the literary, technical, and legal elements
composing the field of pornography undergone significant changes, they
had also been joined by two forces unknown to Pepys: the governmental
policing of obscenity as one of the social problems affecting the decency,
order, and health of the urban popular classes; and the medicalisation of
pornography as a pathological agent afflicting the now delicately balanced
sexuality of the bourgeois household, particularly that of its sons. It was this
latter development in particular that permitted Chidley to give the auto-
erotic use of pornography such a central and pathological place in the
organisation of his life - to trace its effects in the degeneration of his body
and demeanour and in the sexual misery accompanying his relations with
women.
In other words, we can suggest that what separates the mid-nineteenth
century problem of pornography from its appearance at the end of the
seventeenth century is less the epochal failure of true sexual expression than
a series of mutations in what might be called the deployment or apparatus
of pornography. If we are to describe such mutations it will be necessary to
shift our gaze from the great movements of the sexual dialectic, which have
thus far transfixed the historians of obscenity, and focus instead on the
shifting and contingent relations between the elements of this deployment
or apparatus. Rather than the great cycles of sexual expression - with their
movements towards a true reconciliation of desire and norm, or away, in the
8 On Pornography

direction of repression and unleashed pornographic fantasy - the object of

historical description becomes the relations between the array of factors
(literary, legal, technical, social) which happened to compose the field in
which pornography emerges.
Finally, an ethical and legal interest. In the 1960s the issues in this regard
seemed fairly clear. Armed with a set of distinctions between morality and
law, the private and the public- between the individual's right to freedom
of expression and society's right to suppress harmful conduct- a team of
liberal jurists, supported by psychologists and literary critics, set out to
reform a tangle of criminal statutes, common law procedures and adminis-
trative regulations which they took to be choking the sources of authentic
erotic expression. By attempting to give legal force to a distinction between
erotic art and pornography, they sought to rescue the literature of sexuality
from legal suppression by placing it in the sphere of private morality or (in
the American case) in the domain of constitutiorn~-lly protected speech. To
say that today the results of this reforming project are uncertain would be a
decided understatement. For one thing, it is not clear that the cordon
sanitaire between protected and suppressible erotica has been drawn with
any uniformity or completeness. For another- and this is largely due to the
impact of feminist campaigns - the very idea that it is possible to separate
private fantasies from public norms, or art from pornography, or protected
from suppressible erotica, no longer seems self-evident. Far from seeking to
contract the domain of legally suppressible erotica, feminism today seeks to
expand it to include forms of erotic art and advertising.
Once again, this reversal opens a space in which we can put some
questions to the liberal consensus. Above all it permits us to ask whether in
the area of obscenity it is possible to draw the kind of distinction between
morality and law, private and public, art and pornography, on which the
reform of the law was to be based? We can recall the situation of Samuel
Pepys locked away in his chamber, in one hand a copy of L' Ecole desfilles.
Given our description of the dependence of Pepys' feelings and conduct on
the printed dissemination of a particular sexualising device, it would be a
mistake to conflate Pepys' architectural privacy and the philosophical pri-
vacy of his moral judgement. In other words, it would be a mistake to treat
the space of the chamber in which Pepys cannot be seen by others as a
physical sign of a space of conscience in which Pepys' actions can be seen
by his self.
It is really only in the architectural sense that Pepys was in private. We
shall see that with regard to his sexual ethics, Pepys' desires and gestures -
as well as the ambivalent judgement he brings to bear on them - are
products of a quite public apparatus of sexual self-formation. Indeed, we
 An Introduction 9

shall argue that Pepys' capacity to make himself into an object of know-
ledge and pleasure for himself- and to do so by himself in a closed chamber
- is inseparable from a specific component of this apparatus: the technology
of the printed book. We have already isolated as a topic for further discus-
sion the ease with which the manuals of sexual confession could be con-
verted into repositories of self-eroticisation and thus used for ends quite
other than but just as definite as a seeking of grace. As far as Pepys in
Protestant England is concerned, the literate techniques of Puritan self-
examination- spiritual journalism and autobiography (of which Pepys was
a virtuoso exponent) and casuistical reasoning- could just as easily support
the eroticising confessions of Fanny Hill as the pious life of Robinson
Crusoe, both texts serving exemplary roles for their readers.
The constitutional ambivalence of this sexual conscience - the ease with
which the scrutiny of the soul could assume the form of an erotic search for
sexual grace - as well as its dependence on the printed dissemination of a
specific set of ethical techniques, both bode ill for the project to draw an
essential line between erotica that should be left to judgments of the private
conscience and those other publications which should fall under the public
regulation of the law. If that project is in fact ill-conceived, the distinction
between morality and law begins to look less like a basic philosophical
boundary than a tactic of demarcation. Moreover, this tactic might itself
have depended on the practical forms of ethical education and on the
variable thresholds which have marked the 'juridification' of conducts, that
is, their administration by specifically legal means and instruments. In
short, the distinction between morality and law may not be open to a general
philosophical account or adjudication.
Similar remarks apply to the attempt to reform obscenity law on the basis
of a fundamental distinction between art and pornography. Censorious
judges and campaigning feminists join forces in pointing out that such a
distinction has no necessary pertinence for the sphere of erotica. Chidley's
auto-erotic use of Reynolds and Smollett suggests that this distinction,
far from being an aesthetic or ethical foundation on which the law can
build, itself depends on the positive formation of particular cultural and
ethical capacities that may be unevenly disseminated in a given historical
population.
If this is so, we might suspect that the global advance of the philosophi-
cal-legal categories informing the movement of liberal reform will bog
down in the practical and variable distribution of the ethical capacities
actually responsible for the appropriation of erotica. Small wonder, then,
thatthe categorical distinctions which were to have provided a clear basis
for the new law -between private and public, morality and law, art and
10 On Pornography

pornography - should have become so entangled in the array of institutions

and professions (pedagogical, medical, aesthetic) responsible for the un-
even ethical qualification and skilling of different social groups and catego-
ries of person.
Damaging as this suspicion may be for the liberal attempt to free erotica
once and for all from legal interference, it is by no means automatically
supportive of the feminist project to expand the domain of legal regulation.
To the extent that this latter project also bases itself on a single general form
of subjectivity - the 'objectifying' male psyche - it too risks faltering
amidst the sheer variability and practicality of ethical competences. For we
shall see that obscenity law has no interest in the quality of the conscious-
ness lying behind pornography; it is wholly concerned with the uneven
ethical abilities of the populations 'into whose hands pornography might
fall'. In the modern West, such abilities are the objectives of pedagogic,
medical and other socially therapeutic agencies; hence, it is in relation to
these objectives that legal regulation takes place, with scant regard for the
sovereignty of the subject of representation. The legal recognition of 'vari-
able obscenity'- the idea that works are obscene only relative to particular
channels of distribution and audience type - is one indication of this
important fact.
It now become possible to formulate a different kind of ethical and legal
interest in pornography. This is not an interest which seeks to found legal or
social interventions in a set of philosophical-legal universals, whether those
invested in the distinctions between morality and law, art and pornography,
or those which claim a basis in the rights and prerogatives of a complete and
self-determining human subject. Our starting point is the proposition that
ethical and legal interventions make sense only .within the limits imposed
by specific configurations of what we shall call the 'pornographic field';
that is, the field of disparate institutions historically responsible for the
channels through which erotica have been disseminated and the cultural
interests and abilities through which erotica have been consumed.
The studies of the pornographic field that follow are defined, then, by the
intersection of three interests:

• a theoretical interest in the role of pornography as a relay for the

norms, techniques, and practices of instituted sexualities;
• a historical interest in the field of (literary, legal, communicational,
medical) forces which has seen the emergence of pornography as an
object of pleasure, knowledge, and regulation;
 An Introduction 11

• finally, an ethical and legal interest that seeks to remain within the
range of the actual ethical and legal capacities supported by this field;
that is, within range of ethical intelligibility and legal possibility.

In what follows, these interests are brought to bear simultaneously, rather

than serial! y, on a number of historical and theoretical problems drawn from
this field in which, along with law and the policing of the streets, the
institutions of medicine, education and literature have played their parts.
2 The Pornographic Field
HARM AND CHARM

In 1879 Elizabeth Blackwell, a medical practitioner who had also written

works advocating Christian socialism, women's rights and moral and sani-
tary 'rescue work', published a small manual entitled Counsel to Parents:
On the Moral Education of their Children in Relation to Sex. This book is
not exceptional in relation to similar advice books, if anything, it tends to be
more enlightened in acknowledging the sexuality of women and in stressing
the mutuality of the conjugal relation. Nonetheless, in finding in sex the
hidden key to personal and social improvement and degeneration, in treat-
ing it as both the source of moral and physical health and of numberless
pathologies, Doctor Blackwell's little book is resolutely representative.
If sex is woven into the moral and physical economy of the individual
body, it also has - through the transmission of hereditary or acquired
morbidities and weaknesses- profound consequences for the social body.
As the mediator of these two bodies - responsible for the sexual health of
its individual members and custodian of the vitality of the nation and the
race -the family required concerted ethical and legislative protection if the
dangers and evils of sex were to be avoided. For the doctor certain matters
were beyond question:

The evils resulting from a violation of Nature's method of growth by a

life of early dissipation, are both physical and mental or moral . . .
Amongst the physical evils, the following may be particularly noted. The
loss of self-control reacting upon the body, produces a morbid irritability
(always a sign of weakness) which is a real disease, subjecting the
individual to constant excitement and exhaustion from slight causes. The
resulting physical evils may be slow in revealing themselves, because
they only gradually undermine the constitution. They do not herald
themselves in the alarming manner of a fever, or a convulsion, but they
are not to be less dreaded, from their masked approach. The chief forms
of physical deterioration are nervous exhaustion, impaired power of
resistance to epidemics or other injurious influences; and the develop-
ment of those germs of disease, or tendencies to some particular form of
disease, which exist in the majority of constitutions. The brain and spinal
marrow and the lungs, are the vital organs most frequently injured by
loose life. But whatever be the weak point of the constitution, from

12
 The Pornographic Field 13

inherited or acquired morbid tendencies, that will probably be the point

through which disease or death will enter.

(Blackwell, 1879, pp. 38-9)

It was in the context of this fragile and highly charged moral physiology -
in which sexual medicine had joined the health of the body to the purity of
the mind and the pathology of the individual to that of society - that the
harms of pornographic literature could be known and calculated:

The dangers arising from vicious literature of any kind, cannot be over-
estimated by parents. Whether sensuality be taught by police reports, or
by Greek and Latin literature, by novels, plays, songs, penny papers, or
any species of the corrupt literature now sent forth broadcast, and which
finds its way into the hands of the young of all classes and both sexes, the
danger is equally real. It is storing the susceptible mind of youth with
words, images, and suggestions of vice, which remain permanently in the
mind, springing up day and night in unguarded moments, weakening the
power of resistance, and accustoming the thoughts to an atmosphere of
vice. No amount of simple caution, given by parents or instructors,
suffices to guard the young mind from the influence of evil literature. It
must be remembered that hatred of evil will never be learned by intellec-
tual warning. The permanent and incalculable injury which is done to the
young mind by vicious reading, is proved by all that we now know about
the structure and methods of growth of the human mind ... Physiological
inquiry is constantly throwing more light upon our mental as well as
physical organization ... All that we observe of these processes, shows
us that different physical changes are produced in the brain, by different
classes of ideas, and that the moral sense itself, may be affected by the
constant exercise of the brain in one direction or another, so that the
actual individual standard of what is right or what is wrong, will be quite
changed, according to whether low or high ideas have been constantly
recorded in the retentive substance of the brain.
These important facts have a wide and constant bearing on education,
showing the really poisonous character of all licentious literature, whether
ancient or modem, and its destructive effect on the quality of the brain.
(pp. 89-90)

Writing some eighty years after our doctor of sexual medicine, two
American professors of law take as their task the reformation of the tangle
of laws that had grown up around the literature of sexuality in the eighteenth
14 On Pornography

and nineteenth centuries. The profound centrality of sex to humanity re-

mains in their account, but its fragile and pathological qualities seem to
have vanished. Now the problem for these reforming jurists is to permit
'man' to explore his sexual potential in erotic literature by extending to it
the protection of the First Amendment:

Here is an area of life that immediately concerns all of mankind. It creates

problems that vitally affect most individuals. It is an area in which man
has often groped in the dark, because of periodic taboos on intelligent
discussion. The ready response in recent years to the wider distribution of
literature dealing with this area demonstrates great interest in the serious
concern with problems that so closely affect the lives of all, and the
widespread desire for more information, light, and understanding. There
are many differing and conflicting viewpoints and opinions concerning
the place that sex should play in the life of individuals, and what is
acceptable human conduct. This is exactly the type of subject matter on
which freedom of expression is essential - because of this great human
interest and the great variety of viewpoints. Unrestricted censorship over
the expression of ideas in this area would defeat the very purpose of the
guarantees of free expression -'that men shall be free to express them-
selves on, and to consider and choose between, conflicting viewpoints in
matters of vital concern to themselves.

(Lockhart and McClure, 1954, pp. 361-2)

At the same time the professors are well aware that the right of free
expression cannot be extended to pornography. They therefore concentrate
their energies on formulating a legal mechanism for distinguishing between
pornography and legitimate sexual expression. This cannot be achieved,
they argue, by using the armory of common law tests and definitions of
obscenity, reliant as these had been on conceptions of harm that do not
stand the test of modem knowledge, and scattered as they were across a
patchwork of administrative and legal jurisdictions that robbed them of
consistency and left sexual literature to the mercies of sectional extremism
and local ignorance.
The solution, they argue, is to acknowledge the aesthetic specificity of
this literature: to acknowledge that it too is a vehicle for important ideas,
albeit ideas expressed in a manner that is unique to literature - embodied in
story, character, and setting. Once this is done it will be possible to draw the
protective circle of the Constitution around sexual literature by building
aesthetic criteria into legal statutes (courts must concern themselves with
the aesthetic place and role of erotic passages in the work as a whole), and
 The Pornographic Field 15

by affording literary critics the standing of expert witnesses to the work's

aesthetic (and hence social) value. 'Consideration of literary criticism and
other expert appraisal is probably not a constitutional requirement, but is
essential for adequate fulfilment of the judicial function in constitutional
adjudication of obscenity charges against literature' (p. 393). Our profes-
sors are not too concerned about whether - on the other side of this rational
boundary - pornography might be subject to a certain vestigial policing, or
whether it can be left to die a natural death once sexual expression was in
full aesthetic bloom.
Until yesterday we were in no doubt as to the meaning of this little
historical drama, in which reforming jurists escorted sexual medicine to the
courtroom door, bade it farewell and welcomed in its place literary criticism
and psychology. There was no shortage of participants in this ritual of
enlightenment in which pornography lost its power to harm and became at
worst the sign of a certain personal or cultural immaturity. After all, had it
not been shown that the old law had predicted its prosecution of the harm
of obscenity on groundless conceptions of personal and social pathology
laughable to modem knowledge? Furthermore, in assuming connections
between erotic ideas and pathological effects and between sexual expres-
sion and social harms, had not the law been guilty of a fundamental
confusion between values and facts and between the spheres of private
aesthetic or ethical judgement and public legal regulation? Yesterday it was
clear that a work like Elizabeth Blackwell's was at best a quaint relic and at
worst a sinister reminder of an age in which the fear of sex had obscured our
knowledge of it and curtailed its full and true literary expression by legal
suppression.
Today, however, we are not so sure; and this, as we have indicated, is in
part due to the emergence of feminist campaigns against pornography.
Through an analysis of sexism and the patriarchal oppression of woman,
feminists have sought to re-establish links between erotic ideas and patho-
logical conduct ('pornography the theory, rape the practice') and between
sexual literature and social harms. Without reverting to Elizabeth Blackwell's
moral physiology, contemporary feminism is just as sceptical that erotic art
can be separated from pornography or that modes of sexual expression are
purely a matter of private ethical judgement and therefore of no concern to
the legal regulation of public life. Today it is possible to see the reforming
jurists of the 1960s and 1970s as dupes who, in the name of freeing sexual
expression from the law, collaborated in the dissemination of materials that
infringe women's civil rights or violate the integrity of their persons.
Yet this view. of the liberal reformers may turn out to be as
uncomprehending and condescending as their view of the likes of Elizabeth
Blackwell. In the liberal consensus feminism finds a naive de-regulatory
16 On Pornography

strategy ultimately complicit with sexism. Without disputing the charge of

naivety, there are a number of reasons for rejecting this analysis.
In the first place, the goal of those who sought to reform obscenity law
was, we shall argue, not to free pornography from regulation but to change
the form of its regulation. In this regard it is important not to be taken in by
the reform movement's own view of itself. We have heard our American
professors wondering about whether it would be necessary to have any
regulation of pornography at all, once true sexuality was allowed unfettered
expression. Yet at the same time were they not in fact proposing a new and
more sophisticated mechanism for regulating the dissemination of porno-
graphy? To be sure, Lockhart and McClure proposed that the old 'deprave
and corrupt' test be replaced by statutes recognising the legitimate aesthetic
role of erotic passages - statutes to be applied on the advice of literary
experts. But they also recommended that in deciding the obscenity of a
work, courts should simultaneously take into account the character of the
audience to whom it was addressed, and the channels of advertising and
distribution through which it reached this audience. Even the work of an
acclaimed artist might be obscene in some circumstances of distribution and
reception; that is, obscene for some audiences. From the very beginning,
then, the tactic to establish an aesthetic threshold for obscenity formed part
of a strategy that would allow this threshold to vary with the cultural or
psychological 'maturity' of particular audiences.
Second, it is quite unrevealing to attribute such complex and specific
strategies to general social or political forces like patriarchy or sexism, or
capitalism for that matter. Such attributions do not tell us how- through
what precise configuration of discourses and institutions - the new regula-
tory strategy was formed. We can catch a glimpse of this configuration in
Norman St John-Stevas' 'Obscenity, Literature and the Law', published in
the same period as Lockhart and McClure's article, and making a similar
argument for the removal of the law from the sphere of sexual expression
and ethics. Liberalisation not only bestows rights, argues St John-Stevas
(1956, p. 45), it also imposes responsibilities: 'If a great literature cannot be
created without freedom, neither can it be sustained without a sense of
responsibility on the author's part. The greater the power and the less the
external restraint, the more urgent the need of interior sanctions voluntarily
imposed'.
In this balanced partnership of freedom and restraint, which is insepara-
ble from the pairing of desire and norm, fantasy and utility, we can detect
the presence of a familiar dialectical practice - equally powerful in the
domains of psychology and aesthetics - that contributed to forming the new
regulatory threshold for obscenity. Moreover, St John-Stevas argues that
 The Pornographic Field 17

even if erotic artists achieve this difficult reconciliation. by an interior

asceticism, it may still be necessary to impose external restraint (in the form
of legally differentiated circulation networks) on those sectors of the public
whose sensibilities are not 'fully formed': 'When this practice is extended
to deprive the general public of literary works it is indefensible, but the
protection of the mass of the people from the corrupting effects of porno-
graphy is not so much class prejudice as a realistic recognition that the
present educational level leaves them open to victimisation' (p. 47). It is
thus implied that the interior sanctions provided by aesthetic discrimination
- the sanctions that allow the law to withdraw from the sphere of morality
-themselves have public and material conditions of distribution through the
apparatus of popular education. We need not, however, suspect StJohn-
Stevas of being aware of this implication. In short, it begins to look as if the
move to establish an aesthetic threshold for obscenity depends not on
patriarchy but on a certain calculation made in terms of a 'governmental'
distribution of aesthetic and ethical competences to different audience types.
Finally, it is by no means clear to what degree the feminist critique itself
exists outside the liberal strategy. To be sure, feminism is sceptical of the
art-pornography distinction and with it the move to extend to sexual expres-
sion the protection of conscience or Constitution, and some feminists seek
instead to have pornography policed as a social harm. Yet the arguments
supporting this position are anything but uniform. On the one hand there are
arguments which aim to show the harm of pornography by using sociology
and psychology to demonstrate causal relations between pornography and
criminal or undesirable conduct like rape or sexual discrimination. These
causal arguments, underscoring the gendered nature of pornography, are
indeed outside the intellectual and institutional parameters of the liberal
strategy. They remain, however, irredeemably contentious. Of great impor-
tance, on the other hand, are those arguments which locate the harm of
pornography in its false objectification of women. Pornography, we are
told, objectifies women because it fails to achieve the full reconciliation of
fantasy and utility, desire and norm. Instead it represents women frozen in
the image of masculine fantasy and subservient to the imperatives of patri-
archal interest and social utility. Yet these arguments, as we shall see, are
products of the same aesthetic and ethical dialectic deployed by the liberal
reformers, but which is here directed to speaking of the destruction of
women's experience by the excess of unconstrained male fantasies and
norms. By contrast, liberals have used this dialectic in a positive sense,
taking pornography as the sign of a need to pursue the search for a true
representation of sex.
Feminism has thus used the same aesthetic and ethical threshold for
18 On Pornography

obscenity as the liberal strategy, while seeking a different deployment of it.

Feminists are understandably sceptical that the interior sanctions or cultural
competences necessary to remove pornography from external legal restraint
(and transform it into a matter of conscience) are distributed purely accord-
ing to levels of cultural and psychological maturity. Pressing home the fact
that pornography belongs overwhelmingly to the masculine cultural reper-
tory, they have attempted to make gender the central determinant of this
distribution. Scepticism regarding the art-pornography and morality-law
distinctions is therefore not a sign that the feminist campaign against por-
nography exists outside the tactics and forms of calculation of the liberal
strategy. Rather, it indicates the attempt to deploy the aesthetic-ethical
threshold - above which pornography is harmful to development and in
need of legal restraint or pedagogical intervention - such that the entire
male audience falls beyond it. Not surprisingly, on this side of the threshold
the old call for a true, that is, feminist erotic art continues to be heard.
It seems clear, then, that we cannot regard the liberal strategy as marking
a definitive moment of cultural maturation in which the forces of reason -
armed with the distinction between art and pornography, morality and law
- ejected the pathological conception of pornography from the courtroom
and freed sexual expression from the long night of obscurantism and repres-
sion. But neither can we see it as heralding a new wave of sexual oppression
in which a transfer of pornography from the legal to the ethical domain
would unleash the full degrading force of male fantasy.
Our object is thus to question the pertinence of any general philosophical
division between a private sphere of sexual ethics (interior sanctions) and a
public sphere of social and legal regulation (external restraint). Seen less in
conceptual than in historical terms, the domain of sexual ethics is insepara-
ble from a variegated field of institutions and discourses - including those
of sexual medicine and pedagogy but also of pornography itself - respon-
sible for a specific distribution of ethical-sexual competences across the
population. This is the field of the 'social' (Donzelot, 1979), in which a mix
of governmental, legal and ethical provisions and their associated disci-
plines have elaborated a specific domain of 'social' problems. These traverse
the public-private boundary at every step. If the liberals' philosophical
differentiation of morality from law and art from pornography is in fact
dependent on some such practical and variable distribution of ethical-sexual
competences, then it cannot form the basis for a general withdrawal of the
law from an area said to be intrinsically not its business.
On the other hand, if the ways individuals use pornography are dependent
on the actual distributions of ethical and cultural competences, then these
uses need not be conceptualised as driven by unleashed male fantasy and
 The Pornographic Field 19

hence intrinsically in need of legal restraint. There may be no single general

threshold defining the limits of obscenity law (the line bounding art and
morality) nor, contrawise, establishing the circumstances in which that law
must come into play (causing social harm, infringing rights). Instead, the
threshold across which the law makes its entrances and exits -the threshold
of juridification of sexual writing - will vary with the distribution of
specific ethical abilities, the law itself being part of the complex of institu-
tions overseeing this distribution.
In the light of these preliminary remarks we can formulate two broad
hypotheses which the following studies will develop and explore:

• First, that the deployment and use of erotica has no general form
(deriving from 'man's' true or fantasmatic desire) but varies with the
distribution of erotic interests and competences within the variable
mix of institutions and discourses (religious discipline, sexual medi-
cine, the erotic book trade, pedagogy, policing, social reform cam-
paigns, legislative and judicial decisions) which has constituted the
pornographic field.
• Second, that this field is not characterised by intrinsic differences
between art and pornography or morality and law, but by the contin-
gent and shifting historical configurations of its elements: these form-
ing mobile thresholds for the juridification, pathologisation and
aestheticisation of erotica.

It is the task of this chapter to provide a broad survey of the pornographic

field in its variable configurations, some of which are selected for more
detailed treatment in subsequent chapters.
The argument thus far can be summarised as follows: the liberal strategy
is best understood not as a moment of cultural maturation or regression but
as the sign of a specific historical mutation in the pornographic field: one
which has seen a shift in the composition of regulatory forces away from a
medical-legal configuration (as represented by Elizabeth Blackwell) and
towards an aesthetic and pedagogical one (as represented by Lockhart and
McClure).

THE LIBERAL STRATEGY

Almost all current discussion of obscenity law and pornography takes place
within the horizons of the liberal strategy. If, however, we are to understand
this strategy as itself a specific historical mutation occurring in a much
20 On Pornography

wider field, we must first learn how to detach ourselves from it. How are we
to understand that proliferation of articles, books, and legal testimony
through which, in the 1950s and 1960s, a variety of experts sought to lift the
legal restraints on erotic art, or at least restrict their scope? The phenom-
enon is all the more striking, given the silence of these experts today. 1 What
was it that permitted them to change the status of erotica from a legally
controlled 'toxic' substance to that of the most important agency in 'man's'
quest for sexual and personal truth, in need of policing only when more
essential and inward forms of restraint broke down?
The liberal strategy emerges at the intersection of three distinct forces.
First, psychology with its theme of an optimum form of sexual develop-
ment; second, aesthetics, in particular a romantically-derived literary criti-
cism with its theme of an ideal mode of organic personality and sexual
expression; lastly, jurisprudence with its project for a rational rectification
of the boundary between morality and law. Taking shape within this set of
coordinates, the liberal strategy harnessed a therapeutics of sexual matura-
tion to an aesthetics of the erotic text, thereby transforming the problem of
pornography and relocating the threshold of its legal regulation.
As far as psychology is concerned, pornography is symptomatic of a
breakdown in the mechanism of sexual development, not harmful in itself
but indicative of a harm occurring elsewhere, in a fundamental maturational
process. In what was 'perhaps the single most influential psychological
account of pornography in the 1960s -Pornography and the Law: The
Psychology of Erotic Realism and Pornography- Eberhard and Phyllis
Kronhausen tell a familiar fable of human sexual development. Emerging
between inborn sexual drives and the countervailing force of social mores
and customs, the process of maturation is said to be governed by a funda-
mental dialectic of desire and norm. As the ageless product of this eternal
dialectic, the literature of sexuality is presented with the difficult dual task
of satisfying 'the natural and desirable interest in sex, without turning it into
morbid channels, confusing and linking it with violence, or keeping it
antiseptically detached from the physical sensations which should accom-
pany it, and by connecting the sexual impulse with those love feelings
which are its highest perfection' (Kronhausen and Kronhausen, 1959,
p. 260). It is with reference to the options presented by this dialectic that the
psychologists draw a line through the field of sexual literature separating
what they call 'erotic realism' from 'hard core pornography'.
Erotic realism, they say, has only goal: 'To depict life as it is, including
man's basic biological needs' (p. 28). We should note, however, that the
criterion for success in this regard is that erotic writing function as a vehicle
for the dialectic of psycho-sexual maturation; that is, that it permit a full
 The Pornographic Field 21

expression of the sex drive without allowing it to become tyrannical, while

admitting the shaping force of social norms without allowing them to
become repressive. The value of this realism lies in the therapeutic possi-
bilities that it offers: '[I]t reflects a basically healthy and therapeutic attitude
toward life' (p. 23). This must be kept in mind when the Kronhausens offer
as a touchstone for recognising erotic realism the presence of anti-erotic
detail (dirt in Henry Miller, philosophy in D. H. Lawrence, humour in Mark
Twain) that keeps erotic fantasy in touch with the balancing norms of
experience and aesthetic judgment.
Pornography, for its part, and especially the pornography of perversions,
is what results when this dialectic fails. In our age, the authors claim, social
norms in the form of literary censorship have imposed a one-sided repres-
sion of the drives, forcing them underground where -paradoxically -they
achieve enormous power and return in uninhibited and perverse forms. For
this reason pornography is simultaneously fantasmatic and aphrodisiacal, a
succession of inadequately sublimated sex scenes, each one a little theatre
of forbidden and perverse acts. Once again, it is important to note that in
offering as the touchstone of pornography the absence of anti-erotic details
and digressions -of characterisation, setting, philosophy- the Kronhausens
are lamenting the lack of material for a certain psycho-therapeutic action:
the playing off of fantasy and desire against experience and norm.
It should be clear why the law can be accorded no positive role in this
new division of the field. At best it appears as a somewhat clumsy institu-
tional expression of social norms which, if they are not to deny 'man' his
sexual truth, must be kept flexible enough to receive the shape of desire:

In its attempts to suppress the sexual needs of the individual, society has
always exercised a certain amount of literary and artistic censorship. In
defiance of this limitation, erotic realism insists on giving the sexual
interests . . . their proportionate share in the particular medium of the
artist. (p. 26)

At worst- but typically -the law is treated as complicit with the fearful and
repressive imposition of such norms which, in blocking the appropriately
sublimated expression of desire, actually produces the pornography of
perversions that it attempts to eradicate. Psychology therefore shows the
law how to withdraw from what is claimed to be the psycho-therapeutic
domain of erotic literature, leaving it only a residual function at the margins,
to handle cases of bad development, which will become fewer and fewer as
the yoke of repression is lifted.
In the case of aesthetics (and literary criticism), pornography is the sign
22 On Pornography

of an aesthetic rather than a psychological failure. However, we are imme-

diately aware that this failure is specified according to a dialectic that bears
a striking resemblance to the one we have just examined. It was Friedrich
Schiller who in the late eighteenth century first differentiated between
'naive' and 'sentimental' poetry, declaring that the former was indicative of
the tyranny of the senses over the imagination while the latter was the
product of ideas and fantasies given free reign at the expense of the senses
and experience. The truly aesthetic work or disposition, however, achieves
a dialectical reconciliation of what Schiller called the 'form drive' and the
'sense drive':

Melting beauty, so it was maintained, is for natures which are tense;

energizing beauty for those which are relaxed. I call a man tense when he
is under the compulsion of thought, no less than when he is under the
compulsion of feeling. Exclusive domination by either of his two basic
drives is for him a state of constraint and violence, and freedom lies only
in the co-operation of both his natures. The man one-sidedly dominated
by feeling, or the sensuously tensed man, will be released and set free by
means of form; the man one-sidedly dominated by law, or the spiritually
tensed man, will be released and set free by means of matter. In order to
be adequate to this twofold task, melting beauty will therefore reveal
herself under two different guises. First, as tranquil form, she will as-
suage the violence of life, and pave the way which leads from sensation
to thought. Secondly, as living image, she will arm abstract form with
sensuous power, lead concept back to intuition, and law back to feeling.
The first of these services she renders to natural man, the second to
civilized man.

(Schiller, 1795, pp. 119-21)

In this process 'melting beauty' effects an ideal reciprocity between feeling

and idea, subject and object, desire and norm.
Through an historical overlapping (examined in more detail in Chapter 4)
it became possible to transpose this aesthetic and ethical dialectic into the
sexual register, thereby producing the aesthetic specification of pornogra-
phy publicised by D. H. Lawrence. For Lawrence- preoccupied as he was
with the image of the over-civilised or 'spiritually tensed' man - the
defining characteristic of pornography is predictably its sentimentality, a
tyranny of mentality and fantasy which, at the expense of the senses and the
'body' of language, traps the subject in a purely auto-erotic relation to the
self:
 The Pornographic Field 23

The sentimentalism and the niggling analysis, often self analysis, of most
of our modem literature, is a sign of self abuse. It is the manifestatiqn of
masturbation, the sort of conscious activity stimulated by masturbation,
whether male or female. The outstanding feature of such consciousness is
that there is no real object, there is only subject. This is just the same
whether it be a novel or a work of science. The author never escapes from
himself, he pads along within the vicious circle of himself.

(Lawrence, 1936,p. 180)

Lacking the resistance of experience or norms, the 'pornographic imagina-

tion' is manifest in endless erotic fantasy. Recognisable in the absence of
developed characters and setting, it transmits the single-minded intention of
sexual arousal.
Erotic art or literature, on the other hand, is characterised - the pattern
should by now be clear- precisely by its success in reconciling the aesthetico-
sexual opposites. Bringing fantasy up against the complexity of experience
and forcing the imagination to embody itself in the senses (which are in
their tum refined by it), erotic art- the sexual novel in particular- permits
the single-mindedness of sex to encounter the human totality and allows
self and other, subject and object, to enter into a truly reciprocal relation. It
is through such a reconciliation, we are told, that the literature of sexuality
is justified by its realism and wins the right to represent the truth of sex:

We have to be sufficiently conscious, and self-conscious, to know our

own limits and to be aware of the greater urge within us and beyond us.
Then we can cease to be primarily interested in ourselves. Then we learn
to leave ourselves alone, in all the affective centres: not to force our
feelings in any way, and never to force our sex. Then we can make the
great onslaught on the outside lie, the inside lie being settled. And that is
freedom and the fight for freedom. (p. 185)

Once again, however, the criterion for this realism - the co-presence of
erotic detail with developed characters, setting, 'philosophy' - signifies
neither more or less than the textual availability and deployment of the
materials of the aesthetic-ethical dialectic.
We can observe in passing, and mark for future comment, the fact that the
aesthetic specification of pornography also provides the basis for much
feminist analysis. Despite Lawrence's claim that both men and women are
susceptible to the 'sentimentalism' that leaves them locked in an auto-erotic
relation to the self- and despite the bestiary of Lawrence's female charac-
24 On Pornography

ters, many of whom are indeed masturbatory and wilful - it was possible
from the outset to identify the pornographic tyranny of fantasy with the
male imagination, and to replace the one-sidedness of masturbation with
that of rape. For example, in a general article on 'Literature and Pornogra-
phy', Colin Wilson (1982, p. 212) is quite happy to write that 'Pornography
is a more civilised version of rape. That is to say, it is an appeal to this
masculine desire to conquer and penetrate, without personal involvement
... Rape has been transposed into the world of the imagination'. With this,
we are already in that quirky domain where - like masturbation before it -
rape will be used as a general metaphor for any failure of aesthetic reciproc-
ity and thus of sexual mutuality, bringing the stigma of crime to an ethical
failing but thereby threatening to tum the crime into a matter of aesthetics
and ethics.
In either case, it is clear that, like psychology, literary criticism provides
a powerful means for rolling back the area of sexual literature open to legal
regulation: this time by making the aesthetic-ethical dialectic central to the
realisation of true sexuality and by reconstructing the problem of pornogra-
phy as a failure in 'man's' aesthetic education. The claims of aesthetics to
adjudicate in this matter are given their full romantic charge in the follow-
ing remarks:

One point seems evident, that literary standards should not be regulated
by law. Literature is creative, imaginative and aesthetic, with no extrinsic
purpose, its one criterion being fidelity to its own nature. It is the study
of the universal, but in the light of the individual and the particular, an
expression of man's creative faculty, intent on beauty not on utility. Law
is not creative but regulative, seeking not a special ideal harmony but a
generalized justice and the application of universally valid principles.
Thus it is impossible to attempt to confine literature within the Procrustean
bed of the law.

(St John-Stevas, 1956, p. 51)

Pictured as the vehicle of an inflexible social normativity, the law continu-

ally threatens to foster that which it would suppress, by driving the erotic
imagination from the realms of open and publishable experience into a
private fantasy world where it goes bad. Again, it is argued that the law
itself cannot draw the line between art and pornography. Moreover, it can
enter the scene only to deal with residual pornographic failures in aesthetic
education.
It is not yet our business to enquire into the depth of this reciprocity
 The Pornographic Field 25
between the psychological and aesthetic specifications of pornography; or
into whether it results from a common lineage or the contingent overlapping
of adjacent fields. For the moment it is enough to say that in the area of our
concern the psychological dialectic of drive and norm and the aesthetic
dialectic of experience and form duplicate each other perfectly, and in doing
so have produced a powerful psycho-aesthetic schema for the intelligibility
of erotica.
The psycho-aesthetic analysis of pornography dominates the general
academic and cultural arena. For example, Steven Marcus' (1964) much-
cited study describes Victorian pornography in terms of the breakdown of
the aesthetic mediation of fantasy and experience. Its leading characteristic,
therefore, 'is its quality of dissociation; it is dissociated from itself, from
experience, from literature' (p. 228). Hence in Marcus' view pornography
is both too 'abstract' (because nothing diversifies the over-narrow purpose
of sexual arousal) and too 'concrete' (because nothing gives shape to the
proliferation of organs, positions, and events with which the fantasy feeds
itself). But, at the same time, this aesthetic failure to reconcile fantasy and
experience, ideas and feelings, goes proxy for a psycho-therapeutic failure
to achieve an appropriate reconciliation of sexual drive and social norm.
Pornography, says Marcus, is the result of a repressive culture which, in
denying sexual desire, displaces it into perverse and fantasmatic forms
instead of the appropriate sublimation achieved by erotic realism. 2
Peter Gay's (1984) general study of Victorian sexuality simply trans-
poses this same dual dialectic more fully into the historical register. Here a
whole range of historical institutions - from law and education to sexual
medicine - are explained in terms of a repressive failure to reconcile drive
and norm that leads desire into the perverse forms of pornography and away
from its highest expression in the sexual mutuality of the high-bourgeois
couple.
This alliance of psychology and aesthetic has contributed decisively to
the liberal campaign to reform obscenity law. It was, as subsequent chapters
will show, responsible for recasting the problem of pornography from one
of suppressing a pathological substance to one of projecting and protecting
an optimum sexual development - even if the form in which the law could
offer such protection was in the event quite unlike that graceful withdrawal
from the aesthetic scene envisaged by St John-Stevas.
The role of the third force in the liberal strategy -jurisprudence - is both
more complex and more ambivalent than those of psychology and aesthet-
ics. Attached on one side to a philosophical analysis of the law and a project
to subject its errors and excesses to a rational rectification and, on the other,
to the historical array of statutes and case law, procedures and agencies
26 On Pornography

actually responsible for the judicial regulation of obscenity, jurisprudence

has been forced to negotiate a more exacting 'dialectic'.
There is no doubt that during the 1950s jurisprudential reasoning about
obscenity was opening itself to the discourses of psychology and aesthetics,
finding in them a new way of knowing about pornography as a problem in
need of resolution. The role of the psycho-therapeutic dialectic is quite
evident in the American Law Institute's attempt to develop a new obscenity
statute- based on a particular conception of 'appeal to prurient interest'-
for its Model Penal Code. In Lockhart and McClure's paraphrase:

To the American Law Institute, 'prurient interest' is a 'shameful or

morbid interest in nudity, sex, or excretion'; it is 'an exacerbated,
morbid, or perverted interest growing out of the conflict between the
universal sexual drive of the individual and equally universal social
control of sexual activity.' Material 'appeals' to this interest when, 'of
itself, the material has 'the capacity to attract individuals eager for a
forbidden look behind the curtain of privacy which our customs draw
about sexual matters'. The Institute's primary purpose in adopting this
definition was to prevent exploitation of the psychosexual tension cre-
ated by the conflict between the individual's normal sexual curiosity
and drive, and the powerful social and legal inhibitions that restrain overt
sexual behavior.
(Lockhart and McClure, 1960, p. 56)

But the impact of aesthetics is no less clear. Lockhart and McClure (pp. 58-
68) draw in equal measure on Lawrence and the Kronhausens, seeking to
construct the boundary between 'erotic realism' and 'hardcore pornogra-
phy' in terms of the latter's fantasmatic and retardational properties. 'Por-
nography is daydream material, divorced from reality, whose main or sole
purpose is to nourish erotic fantasies or, as the psychiatrists say, psychic
autoeroticism' (p. 65).
Existing American obscenity law was organised around the 1868 English
definition of obscenity (in Regina v. Hicklin) in terms of its 'tendency to
deprave and corrupt those whose minds were open to such immoral influ-
ences and into whose hands it might fall'. In the new cultural-legal environ-
ment, however, this law appeared to be beset by a fundamental weakness.
The existing law, it was argued, defined obscenity in terms of certain
alleged causal effects (and in particular its harmful effects on the most
vulnerable) instead of in terms of the aesthetic and psychological responses
of which it is susceptible. In so doing it confused the unethical with the
harmful and failed to distinguish erotic literature (necessary for 'man's'
 The Pornographic Field 27

ethical-sexual development) from 'worthless pornography'. As a result, it

was suggested that the Hicklin test be abolished, that courts be forced to
contextualise erotic passages in the 'work as a whole', so that their aesthetic
integrity could be judged in terms of the author's intentions; and that
literary critics be empowered to help clarify whether a work was a true
aesthetic expression of human sexuality or whether it simply nourished
erotic fantasies. In this way a reforming jurisprudence drew on psychology
and aesthetics to propose what it imagined was a rational correction of the
law. The effect of these reforms would be the law's withdrawal from an
ethical and aesthetic sphere into which it had trespassed at the behest of the
forces of sexual ignorance and cultural repression.
There is equally no doubt, however, that the closer the reform movement
came in government reports and legal statutes to operationalising the new
threshold for obscenity, the more difficulties it encountered. It was all very
well to talk about the 'work as a whole' and about respecting the author's
intentions, but given that these intentions could only be ascertained in the
work itself, and given that the work was dependent on the kind of response
it received, the location of the new threshold was far less easy. But this was
only a curtain-raiser to a more general and profound problem.
In attempting to free erotica from laws aimed at protecting the most
vulnerable, the liberal strategy had begun using as its benchmark 'contem-
porary community standards' and 'the average person'. However, as Lockhart
and McClure (1960, pp. 68-87) were quick to see, in simultaneously mov-
ing to replace causal effects with psychological and aesthetic responses the
reformist strategy could not in fact avail itself of these universal agents of
judgement, for the inescapable reason that such responses vary. In short, it
became clear that the kind of response to erotic literature, which was to
determine its obscenity, would vary with the kind of person who was
responding. 3 Hence, so too would the obscenity of the work.
The proposed and actual reforms of the 1960s and 1970s have not in the
event attempted to directly enact the psycho-aesthetic threshold in a general
form. Rather, emerging in the gap between the clear idea of this threshold
and the actual uncertainty imposed by the variability of audience response,
a number of compromise solutions have been produced, ranging from
exemption clauses (for materials of literary merit) to proposals for a vari-
able test of obscenity itself. We investigate the character of these compro-
mises in more detail below. For the moment it is enough to draw out their
consequence for our exposition thus far: namely, that in determining ob-
scenity the law can take as its point of reference not a general-purpose or
universal human subject but an array of kinds of person. These are differ-
entiated according to the possession of cultural capacities that must be
28 On Pornography

legally recognised. Individuals are equipped with these capacities -that can
affect their legal personhood - by a complex infrastructure of other institu-
tions adjacent to the law and overlapping it.
The jurisprudential project to withdraw obscenity law from the ethical
sphere is simply utopian, to the degree that this project assumes that ethical
capacities inhere in a private realm of subjectivity independent of social
provision and regulation. As far as psychology and aesthetics are con-
cerned, it follows that sexual attributes and ethical abilities do not derive
from the dialectical division of a general human subject but are variably
acquired in the disparate passages of individuals and groups through cul-
tural institutions. Acknowledgement of the fact that the 'appropriate' psy-
chological and aesthetic response to erotica will vary with the cultural level
of the audience means that these responses are themselves contingent ca-
pacities differentially distributed in actual populations.
This helps to make sense of our earlier remarks that in speaking of the
'realism' of legitimate erotica the liberal strategy is in fact referring to the
contingent presence of a particular aesthetic-ethical practice and skill. It
also allows us to propose that mastery of this particular practice and skill,
in which desire is played off against norm and fantasy against experience,
by no means exhausts the historical field in which erotic capacities have
been acquired and pornography has circulated. Once we see the liberal
strategy as a recent configuration of the pornographic field, we can begin to
pursue our investigation outside the specific form of psycho-aesthetic intel-
ligibility which that strategy has imposed upon the field.

THE POSITIVITY OF PORNOGRAPHY

A principal limitation of the psycho-aesthetic analysis is that it treats por-

nography as a purely negative phenomenon. Pornography, we are told, is
the result of some artificial blockage in the mediation of drive and norm,
fantasy and experience. It is the retort of a repressed sexuality that assumes
auto-erotic, perverse, and fantasmatic forms only because this sexuality has
been silenced, denied access to its legitimate objects, and removed from the
shaping pressures of reality and norm. Pornography's consumers are
alleged to be emotionally immature, under-educated, retarded by 'psychic
auto-eroticism' or, in blunter language, 'pathetic dirty-minded old men'.
Of course this view has its attraction, dependent as it is on the promise of
a true sexuality to be made good at the end of our personal or cultural
history, when we have learned to integrate sexual desire and social norms.
However, the assumption on which it is based- that our sexuality has been
 The Pornographic Field 29
disfigured by a long history of silencing and repression - has been more or
less destroyed by Michel Foucault's history of sexuality. The history of
sexuality since the seventeenth century, argues Foucault (1979, pp. 17-35),
has not been marked by silencing and repression but by the converse: a
multiplication of inducements to speak about sex, discourses on sex, and
institutions requiring their utterance.
Foucault's account turns on a remarkable inversion ofthe cornerstone of
the standard histories: we in· the West are not beings characterised by a
repressed sexuality; we are beings characterised by the fact that we say that
our sexuality is repressed. This discourse on repression, for Foucault, is a
'fable' which emerged as part of the apparatus of confession and spiritual
direction between the fifteenth and seventeenth centuries. In this context the
discourse did not behave as a (true or false) description of sex but as a
device with particular application to conduct. To teach individuals that the
truth of their sex was hidden was a means of getting them to look for it and,
in looking for it, expose more of their self to correction. We learn to say that
our sex has been silenced as part of an instituted process of speaking about
it. In other words, the discourse on repression and the confessional technol-
ogy to which it belongs are responsible for getting individuals to behave as
if their conduct was determined by secret and silent desires, which must of
course be revealed and spoken. In this manner, our sexuality is not ex-
pressed but achieved. Foucault summarises his functional displacement of
the theme of repression in the following remarks:

But this often-stated theme, that sex is outside of discourse and that only
the removing of an obstacle, the breaking of a secret, can clear the way
leading to it, is precisely what needs to be examined. Does it not partake
of the injunction by which discourse is provoked? Is it not with the aim
of inciting people to speak of sex that it is made to mirror, at the outer
limit of every actual discourse, something akin to a secret whose discov-
ery is imperative, a thing abusively reduced to silence, and at the same
time difficult and necessary, dangerous and precious to divulge? We
must not forget that by making sex into that which above all else had to
be confessed, the Christian pastoral always presented it as the disquieting
enigma: not a thing which shows itself, but one which always hides
.... Doubtless the secret does not reside in that basic reality in relation
to which all the incitements to speak of sex are situated . . . . It is a
question rather of a theme that forms part of the very mechanics of these
incitements: a way of giving shape to the requirement to speak about the
matter, a fable that is indispensable to the endlessly proliferating economy
of the discourse on sex. What is peculiar to modem societies, in fact, is
30 On Pornography

not that they consigned sex to a shadow existence, but that they dedicated
themselves to speaking about it ad infinitum, while exploiting it as the
secret. (pp. 34--5)

And to emphasise the peculiarity of our western sexual technology, Foucault

reminds us that in the East sexuality is less a dark secret to be endlessly
brought into the light of knowledge than a set of pleasure techniques in
which one might be successfully instructed, like yoga.
From Foucault's account of the discourse on repression we can draw a
number of coordinates for re-orienting the approach to pornography. In the
first place, we can suggest that in attributing pornography to the repression
of sexuality, modem histories and psychologies show themselves to be
active extensions of the apparatus of western sexuality rather than inde-
pendent reflections on it. By ignoring the fact that western societies have
developed elaborate mechanisms for speaking about sex, and by re-telling
the fable of the long centuries during which we have supposedly repressed
sex and condemned it to silence, these modem histories reactivate in their
own registers the very same means deployed by the technology of confes-
sion. If they ascribe pornography to repression, this is less a description of
historical fact than a device ensuring that we will continue to approach
pornography as if it were the dark secret of our sexuality and the hidden
truth of our self. Not only does the fable of repression thus activate a
powerful incentive to talk about pornography, it also ensures that this
discourse will present itself as an emancipation, the breaking of a silence
and the penetration of an enigma. Our own discourse on pornography in
these studies, therefore, will not forget that it takes place in one of the most
garrulous fields imaginable. Far from requiring sagacity and courage in
order to be spoken of, the secret of pornography is something that anyone
can speak of in order to be attributed sagacity and courage.
Second, setting limits to the concept of repression helps to draw out the
positive character of pornography. Foucault's hypothesis is that western
sexuality -far from being a timeless expression of the dialectic of drive and
norm, fantasy and experience - is a historical product of the emergence and
proliferation of confessional techniques, discourses and institutions. Let us
say that pornographic writing is one device in this confessional technology.
The technology of confession is not an apparatus revealing the existence of
sexuality to knowledge; it is a means of bringing western sexuality into
existence by attaching it to an apparatus of know ledges in which it must be
revealed. As a result, argues Foucault, our knowledges of sex - even the
most scientific - are also a means of obtaining sexual pleasure, just as
pleasure in sex is for us to tied to the gesture of knowing its mystery. As part
 The Pornographic Field 31

of the confessional apparatus, pornographic writing is not a negative reflex

of real sexuality but a repository of positive techniques for making a
specific kind of sexuality real.
Finally, as a result, we can begin to discuss the emergepce of modem
pornography in the seventeenth century in terms of the action of confession
seen as a particular cultural technology. Confession was a means of getting
individuals to organise their feelings and conduct around the principle of a
hidden desire: a desire which they were obliged to reveal in an exchange
establishing the interdependence - among us - of knowledge of sex and
pleasure in it. The religious 'confession of the flesh' was thus itself a
powerful eroticising mechanism which, under ideal operational circum-
stances, used the erotic sensibility that it created as an anchor for spiritual
intensity and religious discipline. Operational circumstances are rarely pre-
dictable, however, and the border between the mastery of sexual self-
interrogation for spiritual purposes and as an avenue to erotic intensities
proved to be easily crossed. Most important, it is at the crossing of this
border that we can locate the emergence of pornography. Foucault com-
ments:

One could plot a line going straight from the seventeenth-century pasto-
ral to what became its projection in literature, 'scandalous' literature at
that. 'Tell everything', the director would say time and again: 'not only
consummated acts, but sensual touchings, all impure gazes, all obscene
remarks ... all consenting thoughts'. Sade takes up the injunction in
words that seem to have been retranscribed from the treatises of spiritual
direction: 'Your narrations must be decorated with the most numerous
and searching details; the precise way and extent to which we may judge
how the passion you describe relates to human manners and man's
character is determined by your willingness to disguise no circumstances;
and what is more, the least circumstance is apt to have an immense
influence upon the procuring of that kind of sensory irritation we expect
from your stories'.
(Foucault, 1979, p. 21)

To do historical justice to pornographic writing, we must not see it as

emerging from the thwarting of a universal and ideal process of sexual
maturation -a phantom that would tum to dust when the first rays of sexual
liberation broke through the long dark of repression. Rather, it acquired a
positive and autonomous existence as an ethos or means of conducting the
self in a certain way, that is, as the 'profane' form of what had been a
'spiritual' ethic.
32 On Pornography

We can now see what it means to say that sexuality is not the possession
of a generalised psychological subject- the expression of a timeless dialec-
tic between drive and norm - but the artefact of a limited set of institutional
and discursive.arrangements, initially focused in the practice of confession.
Far from silencing and repressing sexuality, the Christian churches were the
initial locus of a powerful machinery for sexualising larger sectors of the
population; for disseminating the techniques of sexual conscience; for 'putting
sex into discourse'.
Since the confession of the flesh was not simply a matter of doctrine and
belief but the product of a whole technology of instituted relationships,
regulated practices, and types of discourse, there was no guarantee that this
technology would remain within the limits and purposes of its initial reli-
gious deployment. Even here the eroticising effects of confession and the
direction of conscience could not be strictly controlled. The unstable ex-
change between excitation and restraint often broke down, sometimes with
spectacular and alarming effects, as in the phenomenon of demonic posses-
sion. We should not too surprised then, if outside its religious deployment,
the intensification of desire produced by the confessional technology could
easily assume 'lewd and lascivious' forms. This was not the subversive
retort of a repressed sexuality rooted in the body and its drives, however. It
was a sign that, transposed beyond its religious deployment through the
agency of print and print literacy, this migrating technology continued to
produce its effects of desire in other milieus governed by other norms. It is
to this transposition that we must look for the emergence of early modem
pornography, which was both its instrument and its effect.
Consider, for example, this extract from a confessional manual published
in the early seventeenth century. Giving directions for confessing the sin of
lust, the manual states that:

With respect to the confession of bad gestures the penitent must describe:
a. exactly what he was thinking at the time of the pollution
b. whether he made use of any instrument
c. whether he made use of the hand of another
d. which part of the body was used to make the gesture
e. was the reason for using this part of the body uniquely for reasons of
utility, or was it for reasons of particularity?

(quoted in Foucault, 1975, p. 32)

Under this kind of pressure, comments Foucault:

 The Pornographic Field 33
The complex and floating notion of carnality, of the flesh, begins to
detach itself from the materiality of the body. The flesh is both the
domain and the exercise of power and of objectivation; it is the site of the
multiple intensities of desire and delectation, the sensitive and complex
body of concupiscence. (p. 29)

It is not so remarkable, then, that early modern pornography should have

emerged from the Christian technology of the flesh. More specifically, we
can understand why, towards the end of the seventeenth century, the table
of contents from The School of Venus should have both duplicated and
parodied the spiritual interrogation of the flesh, containing these entries
amongst others:

Special names of those organs which are primarily the ones to minister to
love's desires, beginning with another description of the yard .... A
discussion of mounting and the various ways of riding, as well as others
which can be imagined ... Care which must be taken in approaching the
climax of love-making. Brief description and classification of all the
pleasures which should precede and accompany it, in words and thoughts,
as well as actions .... The aim of love is physical pleasure. Reason for
this with a charming explanation of the subject . . . Reasons why the
buttocks are clenched during intercourse. An explanation of this. A
further enquiry as to why men experience more pleasure when women
touch the yard with their hands than with any other part of their bodies.
The special virtue of this pleasure attributed to the female hand . . ..
Necessary means to ensure the enjoyment of perfect bliss by two lovers
during copulation. An exhortation to follow this method. Those girls who
wish to learn this lesson will please take the trouble to read what is
written here.

(Millot and L'Ange, [1655] 1972, pp. 67-75)

In these answers addressed to a reader who accedes to pleasure through the

ritual of instruction in its secrets, we can recognise the central features of
the spiritual interrogation of the flesh: its minute mapping and naming of
the sexual body, its precise specification of pleasures, and its exacting
codification of desire. The concupiscent body - saturated with desire and
charted by a complex cartography of pleasures and gestures - was not
something that pornography found ready-made in the psycho-sexual drives;
neither was it something that pornography manufactured from them as a
revenge on a too-puritanical society. It was, instead, something which
34 On Pornography

pornography inherited when it emerged unforeseen as a profane relay for

the Christian technology of the flesh which had brought this body into
being.
Giving it this genealogy clarifies a number of features of what we might
call - although not without a degree of retrospective formulation - Eng-
land's first commercial pornography. First, it makes sense of the fact that
this literature was almost wholly imported (from France and Italy) and was
relatively rare, both in terms of titles and dissemination. David Foxon's
(1964) bibliographical survey confines itself to Aretino's 'Postures',
Ragionamenti and (the attributed) La Puttana Errante, as well as Millot and
L'Ange's L'Ecole des Filles (The School of Venus), Chorier's Satyra
Sotadique (L' Academic des Dames, a Dialogue Between a Married Woman
and a Maid, or The School of Women), and Barrin's Venus dans le Cloftre
(Venus in the Cloister, or the Nun in her Smock). Although Wagner (1985,
p. 33) expands this list to twenty-four titles (largely by including a number
of borderline erotic romances), the fact remains that here we are not dealing
with the late flowering of a prolific pre-repression sexuality, nor the first
dark blooms of pornography that would spread with the onset of Puritanism.
Instead, we are observing a limited but definite process of cultural transmis-
sion. Having migrated from its initial religious deployment, along the
profane channels of translation, authorship and dissemination opened by
print and the book trade, the confessional interrogation of the flesh crossed
the English Channel as a highly specialised literary species addressing a
small sector of the literate public: aristocratic and middle-class men, predis-
posed to self-cultivation and possessing sophisticated literate abilities.
Second, we can understand why this literature is so dependent on the
religious milieu, in particular on the practices of confession and the direc-
tion of conscience. Not only does it draw on these for setting and characters
(overheated nuns, seducing confessors) but, more importantly, for the ethi-
cal-literary techniques with which it addresses its audience. These works
are overwhelmingly in dialogue form. They are in fact erotic transpositions
of the dialogical direction of conscience in which a sexual 'director' con-
ducts a novice through a series of erotic interrogations, following a logic of
intensification and refinement of desire and pleasure.
This also explains the educative rhetoric of much of this literature. The
question and answer form of the dialogue has of course a long history and
the quasi-parodic invocation of pedagogical address is clear enough in the
'answers' cited from the preface to The School of Venus. What Pepys found
in this 'mighty lewd book' was a typology of sexual postures and erotic
zones; a repertoire of techniques; a sophisticated erotic lexicon ('A refined
and subtle explanation of such words as thread, impale, belabour, mount
 The Pornographic Field 35

and ride'); and a whole encyclopedia of pleasures and imaginings. But of

equal if not greater importance is the fact that what The School of Venus
found in the great diarist was a master of spiritual 'book-keeping'; that is,
a reader adept in the ethical-literary techniques through which Protestants
had learned to scrutinise their own lives for the signs of inner grace and
thereby expanded and intensified the private sphere.
Should we be surprised, then, if at the meeting point of a literature
transmitting a new erotics of the flesh, and a practice of reading through
which individuals opened up the relatiQil to the inner self, there should have
emerged a specifically auto-erotic deployment of literature? A conscien-
tious sexuality? Pepys' masturbatory use of pornography is not the surro-
gate form of a sexuality denied its true object, a symptom of psychic auto-
eroticism. Instead, it can be regarded as one of an ensemble of positive
techniques through which a special class of individuals redefined their
relation to the self through an interrogation-incitation of the sexual body.
The old joke that pornography is literature read with one hand yields up its
grain of truth. In Pepys' secretive use of it; we find a small emblem for the
emergence of pornography as the instrument and effect of the profane
redeployment of the spiritual technology of the flesh. That psychologists
now interpret the auto-erotic application or use of literature as symptom of
retarded or incomplete maturation does not signal the discovery of the truth
about pornography. It is simply a sign that in the two centuries following
Pepys, this particular application would come to be increasingly managed
by a medical apparatus and its norms, as we shall see.

BffiLIO-EROTICS

Given their reciprocity and interdependence, we can predict that what we

have called the positivity of pornography will be as problematic for aesthet-
ics as it is for psychology. It will be recalled that in the aesthetic analysis
pornography is understood in terms of the breakdown of a fundamental
aesthetic-ethical dialectic, that is, a result of the failure to reconcile the
tyrannical fantasies of the will and the equally peremptory imperatives of
the senses and experience. Pornography is said to be the outcome of twin
failures: of the inability to realise and embody the abstract intention to
arouse in an imagery that would put it in touch with the potential totality of
human experience; and of the symmetrical inability to subject the chaotic
and excitatory imagery of the senses to the shaping force of the moral will.
As such, pornography is paradoxically held to fail in two different direc-
tions at the same time. It is too abstract, being nothing more than a didactic
36 On Pornography

vehicle for the intention to arouse, and hence recognisable by a mechanical

aggregation of sex scenes allowing for no organic development of character
and plot. But it is also too concrete: freed from the inhibitions of the moral
will, the imagery of the senses gushes forth unconstrained, allowing por-
nography to be recognised by the torrent of sexual detail flooding over its
mechanical plot.
There is no doubt that this model- in which psychology's maturational
and therapeutic analysis of pornography is recapitulated and tranformed by
an aesthetics of the text- is the most powerful one currently available. But
if, as we have just seen, the psychological analysis runs foul of the historical
specificity and positivity of pornography, things are no easier on the aes-
thetic side of the psycho-aesthetic model, and for similar reasons. Three
questions must be raised.

1. Is pornography failed art?

What are we to make of the attempt to specify a pornographic genre - one

in which aesthetic failure would go proxy for psychological immaturity - in
terms of the plethora of erotic detail and the mechanical nature of the sexual
narrative and its characters? While not wishing to reject their descriptive
value out of hand, have we not seen that these features of pornography
emerge from cultural circumstances more local, technical and contingent
than the failure of some great dialectic between fantasy and experience,
senses and will? Dwelling on erotic details might be a characteristic of the
'pornographic imagination', but there can be little doubt that this is a
capacity formed initially in the institutions and for the purposes of confes-
sion and spiritual guidance. The confession of the flesh took hold not as a
theological doctrine, nor as a moral code, but as a network of regulated
practices, controlled techniques, and constrained discourses; one that per-
mitted the adept to locate desire in the smallest impulses, in the most
ramified complicity of the body's gestures and the mind's imaginings. For
example, in requiring the penitent to describe 'exactly what he was thinking
at the time of the pollution', the confessional manual cited above also
required the priest to inquire as to whether thoughts of incest or of for-
nication accompanied the act, as this affected the sort of sin committed.
Transposed into the pornographic register the same technique affected the
intensity of desire stimulated and pleasure realised. In both cases the degree
of sexual detail registers the extent to which the practice of a confessional
erotics has transformed the body into that complex cultural object of spi-
ritual anxiety and carnal pleasure known as 'the flesh' .4 Adopting Foucault's
terminology, we might say that what the confession of the flesh provided
 The Pornographic Field 37

was a 'micro-technics of delectation' whose redeployment in pornography

relied upon a sensitivity to erotic detail that - far from signifying the
uncontrolled tyranny of fantasy or the senses - had been painstakingly
forged through mastery of the techniques of spiritual self-interrogation.
That this is so can be seen from two very different events.
First, by the end of the seventeenth century the Catholic church was itself
attempting to moderate the incitatory effects of confession and spiritual
direction, precisely by urging on priests a new discretion with regards to the
details sought in the confession of sins of the flesh. Second, the work that
we find at the centre of the Hicklin case in 1868- the nineteenth-century
case responsible for producing the 'deprave and corrupt' test- is a pamphlet
entitled The Confessional Unmasked. This is a compilation from the great
confessional manuals of Dens, Liguori, Bailly, and Cabassutius. The inti-
mate relation between the profane delectation of erotic detail and the minute
spiritual interrogation of desire may have remained a mystery to psycho-
logically inclined literary critics; not so, however, to Chief Justice Cockburn,
who found in this relation the crux of the obscenity of this anti-papist
pamphlet:

The very reason why this work is put forward to expose the practices of
the Roman Catholic confessional is a tendency of questions, involving
practices and propensities of a certain description, to do mischief to the
minds of those to whom such questions are addressed, by suggesting
thoughts and desires which otherwise would not have occurred to their
minds. If that be the case between the priest and the person confessing, it
manifestly must equally be so when the whole is put into the shape of a
series of paragraphs, one following upon another, each involving some
impure practices, some of them of the most filthy and disgusting and
unnatural description it is possible to imagine.

(Regina v. Hicklin, p. 371) 5

So much for the question of delectable details. What of the so-called

repetitive and mechanical quality of pornographic narrative and characteri-
sation? Once again it is not difficult to show relations of filiation and
transposition between the structure of sexual confession and that of the
erotic text. An erotic dialogue like The School of Venus, for example, is
organised by the confessional imperative to tell another all one's secret
temptations and sins, now given a positive value as the key to sexual
knowledge and pleasure. Equally, the dialogical form of this erotic direction
of conscience imposes a serial and repetitive organisation. The director
38 On Pornography

questions the novice regarding her feelings, command of sexual technique

and idiom, which produces further disclosures, prompting further questions
and so on.
Recent scholarship has discerned a similar relation between Puritan tech-
niques of conscience and the structure of the early novel. 6 Here the focus
has been on a specific ensemble of ethical-literary techniques - spiritual
autobiography in particular- but also diary-keeping, conduct books, provi-
dence literature, and popular casuistry. Robbed of the certitude of salvation
provided by sacramental rituals like confession, Puritans found in these
techniques a means for giving their own conduct the structure of a 'life' and
for scrutinising it for signs of grace. In this way specific ethical and literate
competences were developed which formed a cultural sub-stratum common
to both devotional literature and those books which were eventually called
novels. Two features of this cultural overlap are of particular importance for
our argument.
First, because the function of spiritual autobiography was essentially
exemplary - to show readers how to organise their lives around the search
for signs of grace- pseudo-memoirs like Robinson Crusoe and Tom Jones
could be put to the same ethical use. Second, this secular transposition of
spiritual autobiography also provided the memoir-novel with a particular
structure. This was one in which events were organised into the stages of a
life: a succession of critical moments in which the memorialist either
discovered the workings of grace in their own life and hence moved closer
to that blessed state, or else failed to do so and remained in anxiety.
Once again, the important thing about this structure is that, as a functional
component in a specific ethical-literary practice - a device for recording
and scrutinising conduct which permitted norms to be internalised as con-
science - it was relatively autonomous of any particular doctrinal invest-
ment. Under these circumstances it was quite possible for the pleasures of
the flesh to occupy the structural position of 'grace', and for memoirs to
appear in which the events of the 'life' were organised around the search for
sexual grace and the cultivation of erotic conscientiousness.
Underwriting the 'editor's' prefatory claim that Robinson Crusoe's story

is told with modesty, with seriousness, and with a religious application of

events to which wise men always apply them, viz. to the instruction of
others by this example, and to justify the wisdom of Providence in all the
variety of our circumstances ...

(Defoe, 1719, p. 25)

and Fanny Hill's promise to

 The Pornographic Field 39

recall to view those scandalous stages of my life, out of which I emerged

at length, to the enjoyment of every blessing in the power of love, health
and fortune to bestow ...

(Cleland, 1748, p. 39)

we find a single structure linking one of the most pious novels in English to
one of the most erotic. That Fanny Hill's life should lead her only from one
erotic encounter to the next is not a sign ofthe author's inability to achieve
an exemplary reconciliation of the imperatives of fantasy and the pressures
of experience. Instead, it indicates that - once redeployed as an erotics of
the flesh - the autobiographical schema (awakening, search for grace,
conversion) could promise a different kind of election; one in which each
event in the exemplary life revealed a new level of pleasure and took one a
step closer to erotic grace:

For my part I was so enchanted with my fortune, so transported with the

comparison of the delights I now swarmed in, with all the insipidity of
my past scenes of life, that I thought them sufficiently cheap even at the
price of my ruin, or the risque of their not lasting. (pp. 80-1)

2. Is there a subject of pornography?

Pornography, it is said, is read and written by those who have not yet
learned to mediate between the power of fantasy and the resistance of
experience; it is essentially a symptom of an aesthetic immaturity. Its appeal
signifies the retardation of a formative process- Peter Gay's 'education of
the senses' - rooted deep in the divisions of the human ethical substance
and whose culminating point is represented by the true artist and true erotic
art. Or so we are told.
What, then, are we to make of Samuel Pepys who, in order to read
pornography, not only had to possess a relatively scarce cultural compe-
tence -print literacy - but had to possess it in a foreign language if he was
to consume this rare literary import? What are we to make of the fact that
his reading of pornography overlapped with a quite different cultural ac-
complishment: the discipline of the diary which permitted him to open the
space of inner reflection on his daily conduct? Finally, what are we to make
of the fact that the literary channel through which Pepys shaped his auto-
erotic desire not only required specific cultural abilities, but was also gender
specific? (Pepys had picked up L' Ecole des Filles as a possible translation
exercise for his wife, but found in it a device for a practice of erotic
intensification from which she was excluded.) All these questions suggest
40 On Pornography

that the auto-erotic interest in pornography, far from originating in the

(retarded) aesthetic organisation of the human subject, was (at least ini-
tially) a relatively rare cultural competence dependent on a definite and
limited social distribution.
This competence depended on particular kinds of institution transmitting
specific ethical techniques. The direction of conscience, for example, was a
practice largely of seminaries and convents, so that in the first instance it
was only the spiritual aristocracy who could acquire a 'concupiscent body'.
And even when, through Protestantism, certain ethical techniques were
spread more widely, they remained unevenly distributed, depending on the
degree of proselytizing and pastoral surveillance, general cultural levels,
and mastery of discursive literacy. The schema of the spiritual autobiogra-
phy in which both Robinson Crusoe and Fanny Hill recorded their respec-
tive stages of grace was a cultural device whose mastery not every one
acquired.
Moreover, pornography did not emerge until these instituted ethical
techniques were joined by a particular cultural technology, the printed
book. As Elizabeth Eisenstein (1979) has argued, it was print technology
that permitted ethical techniques to migrate from their closed religious
environments - to spread along the channels opened up by the book trade
where they were transformed by new uses and purposes. Indeed, we have
seen that it was precisely in this process of migration that early modem
pornography was able to emerge as a profane improvisation on the spiritual
interrogation of the flesh.
This permits us to see that the ability to achieve sexual pleasure through
books and a certain practice of reading is neither incidental to - nor a
regressive surrogate for - the real thing. Pornography is not so much a
representation of sexuality as a specific practice of it. We can, therefore,
quite properly speak of pornography as emerging at that point where the
ethical and literary techniques of conscience-formation were re-deployed as
a biblio-erotics or book sex. The outcome of this transposition, in which
techniques for the intensification of desire are relayed through specific
practices of reading and writing, is clear enough in the address to the reader
prefaced to the English translation of L' Ecole des filles:

In the second dialogue Susanne, having come back several days later to
inquire of Fanchon how she enjoyed the sport of love and being made a
woman of, got the girl to give her a complete account of what had gone
on. The two girls being thus absorbed in a conversation which they found
so delightful, stop to investigate and examine all the aspects of the game
of love. They do this with enquiries which are so choice, and stimulating,
 The Pornographic Field 41

and appealing, so unusual, so ingenious, and so persuasive that a mere

reading of them is enough to rouse love's passions, and I guarantee that
even the most fastidious ladies will fmd something here to give them
pleasure.

(Millot and L' Ange, [1655] 1972, p. 66)

At the intersection of the instituted techniques of the flesh and the

communicational technology of the book we find the phenomenon of the
audience. It should now be clear that to speak of the audience for pornog-
raphy is not to speak of a general human subject characterised by aesthetic
immaturity. Instead, it is to refer to a specific historical distribution of the
cultural competences responsible for the practice of biblio-erotics. For this
reason the audience cannot go proxy for 'the subject', defined by general-
ised processes of subject formation; for 'class', as the bearer of certain
economically-determined interests and attributes; or for 'men', as a class
for whom pornography is both symptom and weapon of a rapacious sexual
imagination. Rather, the audience is the terminal point for an array of criss-
crossing and overlapping cultural techniques and practices. It is always the
plural1ocus of a patchwork of cultural competences whose bearer is not the
human subject but differentiated categories of person.
This reconstruction of the interest in and audience for the first pornogra-
phy enables us to avoid a number of problems endemic to aesthetic discus-
sions of pornography. It enables us to sidestep the problems posed by
attempts to specify pornography in terms of a general category of aesthetic
value, for example 'erotic realism'. The point is not just that the application
of such categories provokes endless and sterile debate about which erotic
works should be included in the privileged domain of literature, but also
that the use such categories is premised on the existence of a generalised
aesthetic-sexual subjectivity; one whose truth can only be represented by a
literature that dialectically reconciles the fantasies of the will and the norms
of experience. However, the audience is not the locus of such a subjectivity.
It is the target for an array of cultural techniques, one of which is indeed the
specific technique of dialectical reconciliation. The audience is the bearer
not of representations but of techniques and practices. And the effect of
these techniques and practices is, broadly speaking, to intensify and sensi-
tise. For this reason it is necessary to replace the single division between
'erotic realism' and pornography with a more flexible and differentiated
descriptive schema; one oriented to the variety of ways in which a biblio-
erotics engages the disparate cultural competences of its audience network.
Specifying the audience in this way also enables us to relegate the
42 On Pornography

attempt to treat pornography as symptomatic or expressive of a (negatively)

exemplary subjectivity. This relegation not only applies to liberal endeav-
ours to treat pornography as a sign of aesthetic immaturity but also to
feminist attempts to identify this immaturity with masculinity. We have
observed that the audience for pornography is not the locus of a deficient
subjectivity but the bearer of particular erotic-ethical interests and
competences which are not evenly distributed. The fact that this distribution
has been gender specific suggests that the masculine erotic repertory is at
least in part a historical product of the deployment of pornography, not its
source. The masculinity of the audience for pornography is a sign not of the
latter's gender-specific essence but of its gender-specific distribution. Nothing
in principle stands in the way of the blurring of this distributional boundary
and the emergence of mixed-gender audiences for pornography.
Lastly, we can see why political and legal interventions in the porno-
graphic field cannot draw a single exemplary line between art and porno-
graphy or between morality and law, guaranteed by the potential of the
human subject for self-mastery. From the very beginning, the point of
reception for pornography -the sphere of its eroticising functions -was not
a general subject or consciousness but a definite and limited audience in
which erotic competences were differentially distributed according to age,
gender, familial position, and cultural ability. Small wonder, then, that the
attempt to reform obscenity law by distinguishing between erotica in need
of legal regulation and erotica which could be left to the private conscience
immediately encountered the problem that the scope of conscience (and
hence of obscenity) fluctuated, depending on the audience addressed.

3. How should pornography be historicised?

Our final question to the aesthetic model concerns its history of pornogra-
phy. In tandem with its historical twin, cultural history, aesthetics has
managed to bring this rather inglorious cultural product within the great
schema of Romantic historicism. While the aesthetic model depicts porno-
graphy as emerging from the crucial mediation of fantasy and experience,
of sexual drives and social conventions, cultural history projects this dialec-
tical schema on to the 'whole culture'. Pornography is thus held to emerge
from an imbalance in the historical dialectic: typically from epochs of social
repression in which sociaf norms, too forcefully imposed, deny desire its
true object and force it into a surrogate outlet. This produces the standard
periodisation: pornography is alleged to arise at the end of the seventeenth
century with the onset of Puritanism and to take on new and fantasmatic
forms in the Victorian era, itself understood in terms of the resurgence of
 The Pornographic Field 43

Puritan repressiveness. Subtending this periodisation is, of course, the his-

torical version of the aesthetic education of the senses in which - whether
it is actualised or not - the history of sexuality acquires an ethical direction
from the telos of an ideal reconciliation of private desires and social norms.
The commitment of this historiography to the view that pornography is
an essentially negative phenomenon - its indebtedness to what Foucault
(1979) calls 'the repressive hypothesis' -is clear enough. There is some
irony in the importance attached to Puritanism as a repressive agency, given
the eroticising role of Puritan ethical techniques, but this is only a particular
instance of the difficulties confronting any attempt to read off a history of
pornography from the dialectical development of the 'whole culture'. Yet
pornography did not appear on the historical stage as a truant from the great
school of culture whose mission is the complete sexual education of 'man'.
It emerged from a group of local and contingent historical developments:
roughly speaking, from that unexpected overlap in which the eroticising
machinery of the confession of the flesh was redeployed through the tech-
nology of the book as a biblio-erotics.
This pragmatic and pluralist perspective shows why biblio-erotics cannot
be taken as the (true or distorted) expression of a sexuality originating in the
human subject, or promised by the latter's historical development. From the
outset pornography functioned as a profane relay for the confessional tech-
nology through which some learned to refer all their conduct and feelings to
the hidden spring of desire. For this reason the deployment of pornography
has undergone the same series of historical mutations as the technology of
confession.
Foucault's (1979, pp. 17-49) analysis of the field in which these transfor-
mations have occurred is thus focussed on a specific series of historical
developments. During the second half of the eighteenth century the Chris-
tian confessional, through which individuals had learned to make their self
and their 'flesh' into objects of spiritual knowledge and desire, was itself
penetrated by and taken up within a range of other instrumentalities and
discourses. These included demography, medicine, pedagogy, and psychia-
try. This redeployment produced a network of institutions that multiplied
the situations in which one had to talk about sex; it also multiplied the social
forces and powers whose anchorage became the constantly reiterated mys-
tery and danger of sex. In this way the formerly esoteric minority practice
of sexual self-interrogation became aligned with the more general gov-
ernmental administration of a new entity, the population. This changed
organisation of the field, Foucault argues, was responsible for a decisive
transformation in western sexuality.
Inside the new institutional network, an old pastoral regulation of conju-
44 On Pornography
gal desire - organised around the division between licit and illicit sex -
underwent a sea-change. The new demographic, medical and pedagogic
deployments of sexuality were less concerned with policing conjugal desire
as a law governing the couple than with establishing it as a population-wide
norm in relation to which various non-conjugal sexualities could be speci-
fied as deviations in need of expert intervention and correction. Against
deviancy theory, Foucault argues that thes-e perverse sexualities- of chil-
dren, the homoerotic, the insane - were not negative refluxes of their social
stigmatisation and repression. They were in fact directly positive outcomes
of the newly normalised field that specified them, classified them, 'im-
planted' them in bodies and personalities as so many definite forms of life.
Power, in Foucault's terms, did not attempt to take charge of sexuality
through the negative means of prohibiting its marginal forms. On the
contrary, generated within the expanding institutional network of the appa-
ratus of sexuality, power was exercised in a series of strategies which were
in fact responsible for a proliferation and intensification of perverse
sexualities. Because of their importance in organising the pornographic
field we should take a brief note of these strategies, again drawing on
Foucault's (1979, pp. 41-6) account.

1. The marginal sexualities were not objects of eradication but props or

supports for strategies of iQquiry and management which, in using these
sexualities to expand ever further into social space, in fact required their
multiplication. For example, in constituting masturbation as an aberra-
tion to which all children were prone, sexual medicine and pedagogy
could enter the home and the school, reorganising these spaces of con-
duct around the constant surveillance of a 'vice' which was thereby
rendered indispensable to new medical, pedagogical and familial ar-
rangements.
2. Non-conjugal acts and desires were not banished but targetted by
programmes of (medical, psychiatric, criminological) codification and
incorporated into personality types. Practices like sodomy and mutual
masturbation, once illicit acts anyone might be tempted to commit, be-
came instead signs of unique personages. They were attached to exem-
plary biographies and identified with exotic sensibilities, as medicine and
psychiatry expanded their field by making available a new sexual
characterology: not just homosexuals but zoophiles, fetishists, necrophiles,
exhibitionists, masochists, and so on.
3. Without forfeiting their own methods and objectives, medicine, psy.-
chiatry and pedagogy - in absorbing the technology of confession - took
over the ritual in which one individual is relieved of the burden oftheir
 The Pornographic Field 45

secret sexuality by telling it to another. So, the technique of knowledge

that permitted these disciplines to claim rights to the continent of sexual-
ity was simultaneously a technique of pleasure, as confession brings
desire to the light of knowledge only by inciting it. The power of the new
disciplines of sexuality was thus inescapably wedded to the strategic
exchange linking knowledge and pleasure in the mechanism of confes-
sion. In the case of medicine, for example, therapeutic confession gave
the doctor access to the concupiscent body of the patient and was respon-
sible for a profound medicalisation of sexuality. At the same time, by
ensuring that this body could only be reached through the eliciting of
sexual secrets, therapeutic confession eroticised the doctor-patient rela-
tion and was responsible for a significant sexualisation of medicine. The
power of the new discipline was thus not the expression of a will or
principle acting through them. It was formed only through particular
techniques and relationships, through participation in what Foucault (1979,
p. 45) calls a particular 'game'. 'Capture and seduction, confrontation
and mutual reinforcement: parents and children, adults and adolescents,
educators and students, doctors and patients, the psychiatrist with his
hysteric and his perverts, all have played this game continually, since the
nineteenth century'.

In the complex field to be organised by these three operations or pro-

grammes, early-modem pornography was itself subject to a number of
decisive mutations. In the first place, caught up in the strategies through
which the apparatus of sexuality colonised new regions of social space,
pornography too, like the marginal sexualities with which it was increas-
ingly identified, underwent ever greater specification and expansion. Iden-
tified with the problem of precocious sexuality and made a target of the
great anti-masturbation campaigns undertaken by nineteenth-century sexual
medicine and pedagogy in home and school, pornography became
pathologised as a secret cause of the vice that robbed youth of its physical
and mental health and threatened the future of the family and the race.
Pornography thus entered the realm of 'social problems' as a pathological
agent. When we come to investigate the terms in which Victorian judges
spoke of the harms caused by pornography, we should be strict enough
historians to recall its contemporary medical and pedagogical specification
and to avoid the habit of mind which simply falls back on notions of
prejudice and hypocrisy. At the same time, because pornography was so
closely identified with the evil of masturbation, it too came to function as an
indispensable support for the expansionist strategies of the apparatus of
sexuality. In this way, during the nineteenth century, pornography became
46 On Pornography

a far more important phenomenon that it had ever been before. The more it
became the hidden cause of the dormitory ailment - the guilty secret that
any boy might confess -the more thoroughly consciousness of it took hold
in the new spaces of sexual surveillance.
Second, with the codification of aberrant sexual acts into personality
types a pornography of perversions became possible. This was not, as
Stephen Marcus assumes, a fantasmatic reflux of increased repression. It
resulted from a particular cultural exchange. On the one hand, pornography
absorbed the medical and psychiatric specification of perverse personali-
ties. It transposed and re-valorised these new types, acquiring in the process
a vastly expanded erotic characterology, as the compact libertines of early-
modern pornography -typified by Fanny Hill- fragmented into specialised
pederasts, masochists, fetishists and so on. On the other hand, the machin-
ery of the novel was itself a powerful force in this codification and prolif-
eration of perverse personalities. Not only was it to permit the migration of
medical characterologies to new milieus where they could be put to erotic
and self-affirmatory uses, the novel was also the popular vehicle for those
techniques of conscience through which readers learned to organise their
feelings and conduct around the incitation-interrogation of the flesh. It was
through this unforeseen exchange that certain acts which in libertine litera-
ture had obeyed a logic of the progressive intensification of pleasure - for
example, mutual masturbation which Fanny Hill learns as simply one skill
or element of the erotic repertory - reappeared in the pornography of
perversions as the identifying traits of proudly inverted sexual personalities.
Third, the scientific coding of the confessional pleasure-power-
knowledge nexus - accompanying the emergence of sexual medicine and
psychology - is also a key feature of the modern deployment of pornogra-
phy. Continuing to function as a profane variation on the now scientifically
re-coded technology of sexual confession, pornographic writing itself ac-
quired a scientific character. Hence the appearance during the nineteenth
century of a whole catalogue of erotic books, memoirs and letters in which
the intensification of pleasure is attached to perverse yet methodical forms
of recording, measurement and classification. Such are the writings whose
heroes and authors are pictured as enthusiastic sexual sociologists and
anthropologists, adept in the methods of participant observation, or - like
poor William Chidley- doctors of sexual medicine obsessed by the pathol-
ogy of their own desire.
At the same time, because the new sciences of sexuality could approach
their object only through the writings of their subjects - whether fantasies,
therapeutic dialogues, diaries, published and unpublished memoirs - they
themselves acquired a certain pornographic character. We have noted that
 The Pornographic Field 47

the object of knowledge of the new sexologies - deviant sexuality in

particular - existed only through the constant application of incitatory
technique. The fact that pornography was a major repository of such tech-
nique meant that auto-erotic reading and writing were not simply dispas-
sionate objects of -study for sexology, they were also its indispensable
instruments. For this reason, sexological studies have not been able to
reveal the secret of pornography except through excitatory quotation and
rhetoric. The discourse on pornography is always in part a pornographic
discourse.
Today, in the exchanges of knowledge and pleasure that link a scientific
pornography and a pornographic science, it is difficult to separate the
diagnosis of pornography from its symptoms. In this twilight world, erotic
literature provides a symptomatology for sexological classification (as in
the case of Masoch' s Venus in Furs and the works of Sade), while sexological
studies are themselves disseminated as erotic bestsellers - consider the
whole series of sex reports and surveys from Havelocks Ellis (1922) and
Krafft-Ebing (1965) through Kinsey (1948) and the Kronhausens (1959) to
Shere Hite (1976, 1981) and Andrea Dworkin (1981).
It would be naive to treat these transformations as indicative either of the
scientific abuse of literature or of the popular misuse of scientific knowl-
edge. They are simply signs that pornography and sexology have both
gained access to sexuality through a discursive mechanism in which the
interdependence of examination and excitation, knowledge and pleasure, is
inescapable. The fact that the first volume of Havelock Ellis' Studies in
Sexual Psychology was threatened with prosecution under the obscenity
statutes is not necessarily symptomatic of legal obscurantism and puritan-
ism.
Instead of the model of cultural history -where the place of pornography
as the retort of a repressed sexuality is always redeemed by the goal of an
epoch promising the true reconciliation of desire and norm - we can
therefore propose a more multivalent history of the pornographic field. In
the modem apparatus of sexuality -formed when the technology of confes-
sion was dispersed through a new governmental network, and the law of
conjugal desire was redeployed as a norm specifying a new spectrum of
perverse sexualities - the pornographic field took shape around three main
co-ordinates. Pornography spread along the same axis along which the
medical and pedagogical administration of sexuality was expanding. Like
the aberrant sexualities with which it was identified, pornography was an
indispensable support for this process, and for this reason the interest in it
expanded at the same rate as its pathologisation. Pornography also func-
tioned as a relay and support for the new specification of perverse sexual
48 On Pornography

personalities produced by the apparatus. It transposed the pathological

characterology into an affirmative erotic register and disseminated the
techniques of sexual-ethical identification to an expanding array of special-
ised audiences. Finally, there is the fact that the interrogation of sexuality
was the product of a limited number of techniques of examination in which
knowledge was linked to pleasure. Forced to share these techniques, por-
nography and the emergent sciences of sexuality entered into a reciprocal
relation. In this exchange the pursuit of knowledge was inseparable from
the charge of pleasure and the pursuit of pornographic pleasure borrowed
the interrogative forms of the science of sexuality.

LAW AND ETHICS

To say that the role of the law in the pornographic field has outstripped the
public understanding of it would be a decided understatement. Lawrence's
early cri de coeur 'The law is a dreary thing, and its judgements have
nothing to do with life' (Lawrence, 1936, p. 170) might seem a little
exaggerated, but it still echoes in St John-Stevas' already cited contrast of
a law which is 'regulative' and a literature which, being 'creative, imagina-
tive and aesthetic, with no extrinsic purpose', cannot be confined 'within
the Procrustean bed of the law'. Moreover, as we have seen, these ideas are
at work in jurisprudence itself where they have informed the attempt to
disengage the law from morality precisely along the line alleged to separate
pornography from erotic art.
Jurisprudential reasoning about obscenity law has been disabled by its
openness to the psycho-aesthetic analysis of pornography, an analysis which
is in fact barely legally literate. Placing it at the intersection of erotic desires
and social utility, private fantasies and public norms, this analysis has
allowed the law a very narrow field of action indeed. What is more, this
action has been typically and overwhelmingly seen in negative terms, as a
matter of censorship.
The law, we are told, silences and prohibits. Fuelled by a norm-fed fear
of the drives whose psychological repression it duplicates at the social level
- or else by a utilitarian straitjacketing of the fantasy whose aesthetic
reconciliation with experience it blocks - obscenity law is made to appear
as a monolithic refusal of sexual expression. It is for this reason that even
our best history of it- Donald Thomas' A Long Time Burning - is subtitled
The History of Literary Censorship in England, and places the legal regu-
lation of obscenity in the same series as the law controlling blasphemy and
sedition.7
 The Pornographic Field 49
Until the 1970s, the only option allowed to the law was that it convert this
repressive and censorious function into one of true mediation and reconcili-
ation. In effect this meant leaving the field of erotic expression to the
intrinsic dialectics of human subjectivity, except for some residual policing
along the line which marked the occasional failure of this dialectic; that is,
the line separating erotic art and pornography. We have already noted the
problems which the liberal reformers faced when they attempted to draw
such a line through an organisation as shifting and ambivalent as the
pornographic field. We will return to these problems below. Our prior task,
however, is to address the limitations of the psycho-aesthetic understanding
of obscenity law itself. Here we must pose the following question: Does
obscenity law emerge from a fundamental conflict between desire and
norm, fantasy and utility, in which it has played the role of censor? A
number of considerations suggest an answer in the negative.
First, there is the organisation of the field in which obscenity law initially
appeared. We have argued that in its technical complexity and historical
contingency this field does not share the exemplary dialectical structure of
the human subject, or its collective surrogate, culture. As a result we must
be sceptical concerning the existence of a general repressive function - the
tyranny of norm over drive and fantasy- to which the law supposedly gives
social expression and force. This scepticism is borne out if we look at the
creation of the offence of obscene libel in early eighteenth-century English
common law. We can be brief here as the following chapter deals with this
topic in more detail.
Typically this event is discussed in terms of the early eighteenth-century
resurgence of Puritanism, manifest in the formation of the Societies for the
Reformation of Manners. There is no denying the importance of this event
with regard to the policing of obscenity. We have, however, already cast
doubt on the existence of a uniformly repressive relation between the
Puritan conscience and the deployment of sexuality; what is more, the
sparse obscenity case law of the period reveals no clear evidence for such
a relation. There was, for example, none of the legal mobilisation of the
reforming societies which was to be characteristic of the nineteenth-century
Societies for the Suppression of Vice. The circumstances permitting the
first emergence of obscenity law lie elsewhere.
As a preliminary we need to note that the first book to cause its publisher
to be convicted of obscene libel in a major court- Jean Barrin's translated
Venus in the Cloister, or The Nun in Her Smock, printed and sold by
Edmund Curll in 1724 - had in fact been freely available in London since
1683, just as Millot and L' Ange's L' Ecole des filles and Chorier's Satyra
Sotadique had been sold openly, apparently without legal interference,
50 On Pornography

since the 1670s. 8 What was it that brought such books to the attention of the
common-law courts in the first decades of the eighteenth century? What
made the criminal law assume a form, in 1727, that permitted it to attend to
them? There seem to be two key factors, tied to the concepts of 'public' and
'public morality'.

1. The question of jurisdictions. Curll's defence argued that to count as

a libel in a temporal court a work must either undermine public order or
defame 'some private person': 'Whatever tends to corrupt the morals of
the people ought to be censured in the Spiritual Court, to which properly
all'such cases belong' (R. v. Curl!, p. 849). And indeed it was precisely
on these grounds that the Court of King's Bench had quashed a convic-
tion for obscene libel in Queen v. Read in 1707. The majority of the
judges in Curl!, however, accepted a new disposition of public morality,
one which cut across the existing division of jurisdiction between the
civil and ecclesiastical courts. This new disposition was based on bring-
ing morality within the sphere of government:

As to morality. Destroying that is destroying the peace of the Govern-

ment, for government is no more than publick order, which is morality
.... I do not insist that every immoral act is indictable, such as telling
a lie, or the like; but if it is destructive of morality in general, if it does,
or may, affect all the King's subjects, it then is an offence of a publick
nature. (p. 850)

Accepting this reasoning by the Attorney General prosecuting, the court

broke with the old boundary between spiritual and temporal jurisdictions
and instituted a new division between private ethics and public morality.
It was with this expansion of the governmental sphere that the crime of
obscene libel came into being.
2. The question of the audience. What pushed Curll's book across this
threshold in 1727 was the formation of a public for pornography. No such
public existed in the middle ofthe seventeenth century, when works such
as Venus dans le cloftre first appeared in England. Published in French
for a linguistically sophisticated specialist audience - Pepys is again
representative - they did not constitute a public problem. Their transla-
tion into English, however, together with the rapid expansion of print
literacy and the popular book trade in the late seventeenth and early
eighteenth centuries, changed this situation. That this change was crucial
to the formation of the crime of obscene libel is evident in one judge's
claim that '[t]he Spiritual Courts punish only personal spiritual defama-
 The Pornographic Field 51

tion by words; if it is reduced to writing, it is a temporal offence' (p. 850);

and in Justice Reynolds' remark that 'This is surely worse than Sir
Charles Sedley's case, who only exposed himself to the people then
present, who might choose whether they would look upon him or not;
whereas this book goes all over the kingdom' (p. 851).

We will return to this prescient linking of the public domain to the

apparently coercive immediacy of a new technology of communication. For
the moment we can say that obscenity law first emerged in a complex
technical environment formed by the overlap of a new governmental dis-
tinction between public and private spheres and the spread of a specific
cultural technology and competence. It was this unforeseen overlap, not an
access of Puritan repressiveness, which first saw the law concern itself with
a corruption of public morality by written publications judicially deemed
obscene. Even if the expansion of government had specified a public whose
morality might be corrupted, a public which might be corrupted by porno-
graphy could not in fact exist without the prior dissemination of a specific
cultural technology and the competence to use it: the book and print lit-
eracy.
Second, we should note the specific forms of action open to obscenity
law in the pornographic field. The law did not supervene in an exemplarily
repressive swoop on a field occupied only by the drives and erotic fantasies.
Rather, through a single and uncertain common-law court decision, the law
entered a field already dense with specific forms of social and ethical
regulation derived from the religious technology of the flesh and the direc-
tion of conscience. This occurred only when a new governmental distinc-
tion was drawn between private ethics and public morality. Finding its
object here - with a judicial reassessment of the possibility of a corruption
of public morality by printed dissemination of the techniques of the flesh
and the erotic conscience - obscenity law has been substantially dependent
on those other forms of regulation (first religious and then, in the nineteenth
century, medical and pedagogical) which have supported the deployment of
sexuality. The objective of the law was not - and can never be - the
complete suppression of biblio-erotics. Rather, obscenity law has provided
legal codification and sanction for a specific 'infra-legal' distribution of
ethical-sexual competences ('infra-legal' refers to fields of knowledge and
institutions which have overlapped with the legal domain, and carried
regulatory functions of various sorts). In using this term, our intention is to
establish a historical sense of the on-going negotiations between law and
other forms of regulation - religious, ethical, medical, pedagogical, aes-
thetic- of which law might codify certain elements. In the early eighteenth
52 On Pornography

century, then, a governmental concern with the policing of the population

was made over into a specific legal creation - the new crime of obscene
libel- which marked the juridification of obscene publication.9 This is not
to say that law served as a simple vehicle for state power. In advance of the
finding in Curll, the jurisdictional transfer to which we have referred was in
no way predictable.
It should be clear why the action of obscenity law cannot be understood
as fundamentally repressive or censorious. Particular acts of restriction
form part of a juridification of those channels - differentiated by age,
gender, class and culture- through which the literature of erotic formation
circulates. These acts signal a larger strategy that is distributive rather than
repressive. This- not the hypocrisy of the judiciary- explains not only why
Curll was still advertising Venus in the Cloister in 1735, eight years after his
exemplary prosecution, but also why Victorian authorities turned a blind
eye to the trade in privately-published pornography. It also enables us to
provide an appropriate analysis of the fact that when, in the nineteenth
century, the legal policing of pornography escalated in scale and intensity,
it did so along specifically differentiated social channels.
Consider in this regard two crucial moments in the development of the
nineteenth-century law of obscenity, Lord Campbell's Bill of 1857 and the
landmark Hicklin judgement of 1868. In a moment that was anything but
fortuitous, Campbell raised the matter of the trade in obscene literature
during a House of Lords' debate on the unregulated sale of poisons in the
metropolis:

He [Lord Campbell] was happy to say that he believed the administration

of poison by design had received a check. But, from a trial which had
taken place before him on Saturday, he had learned with horror and alarm
that a sale of a poison more deadly than prussic acid, strychnine, or
arsenic - the sale of obscene publications and indecent books - was
openly going on.

(Parliamentary Debates, 1857, p. 103)

Even in these preliminary remarks it is clear that the cause for concern is the
unregulated and indiscriminate character of a dissemination. Through the
metaphor of pornography as social toxin, Victorian jurists and legislators
articulated two different elements of the pornographic field: the medical
and pedagogical specification of pornography as a pathological agent in-
vading bourgeois homes and schools and whose emblem was the masturba-
tory child; and the Malthusian campaigns and moral reform movements
 The Pornographic Field 53

which identified cheap pornography - along with advertisements for

abortificients, lotteries, drink and incest - as a threat to the procreative
behaviour, well-being and public decency of the popular classes.
Negotiating and systematising these infra-legal specifications of porno-
graphy, Victorian obscenity law emerged not as a monolithic repression of
sexual expression but as a sophisticated and discriminating mechanism of
regulation. Tactics of suppression were involved, certainly, but always as
part of larger strategies of distribution. Chief Justice Cockburn's famous
dictum in Hicklin:

I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences, and into whose hands a publication of
this sort may fall.

(Regina v. Hicklin, p. 371)

should, therefore, no longer be read as a self-condemnatory expression of

Victorian sexual hypocrisy. Instead, we must learn to see it as indicative of
the law's regulatory role in a broader machinery of dissemination in which
erotica were differentially treated according to an infra-legal specification
of types of susceptible persons and dangerous places.
At one end of the scale we find the uncontrolled urban haunts and resorts
of the popular classes- above all London's Holywell Street- which were
pictured as centres of pornographic contagion. At the other end we find the
cultural milieus of the household and the school, specifically - yet
ambivalently - targetted by sexual medicine and pedagogy as places where
pornography silently attacked the minds and bodies of bourgeois youth.
Lord Campbell's introduction of seize and forfeiture provisions into the law
in 1857 was solely directed at policing the distribution of cheap pornogra-
phy. As to the erotic literature directed at the literary middle-class, Lord
Campbell said- with reference to Dumas' The Lady of the Camellias- that
'[h]e did not wish to create a category of offences in which this book might
be included, although it certainly was of a polluting character. It was only
from the force of public opinion and of an improved taste that the circula-
tion of such works could be put a stop to; but he was glad to inform their
Lordships that there was a society for the Encouragement of Pure Litera-
ture, of which his noble friend, the Duke of Argyll was president' (Parlia-
mentary Debates, 1857, p. 1152).
Far from prosecuting an inflexible suppression of biblio-erotics, Victo-
rian obscenity law was in fact responsible for systematising the channels of
54 On Pornography

its distribution. As the initial threshold of pornography's juridification

began to diversify in accordance with the array of infra-legal instrumentalities
aimed at pornography, so too did the legal specification of the boundary
between private ethics and public morality. From a very early date the law
did not attempt to draw this line along a single axis based on harms caused
to a general human subject or reader. Rather it allowed the threshold to float
according to expert medical and other norms defming particular categories
of person and social milieu. Deploying its sanctions in a variable fashion
along this floating threshold, obscenity law subjected cheap mass-produced
pornography to a tactics of policing that constituted in effect a form of
commercial regulation of an illegal economy. At the same time it created a
tolerated zone for the specialised pornography of perversions as long as its
distribution remained private, that is, restricted to adult bourgeois males.
Finally, we can note that the deployment of obscenity law in the porno-
graphic field imposes definite limits on the degree to which, and the direc-
tions in which, this law can be reformed. We are now better placed to see
why the weapons used by the reforming jurists of the 1960s - the aesthetic
distinction between art and pornography and the philosophical-legal dis-
tinction between law and morality - were so quickly blunted by the actual
machinery of obscenity law. Wielded on the assumption that it would be
possible to cut sexual ethics free from the law with a single blow - a blow
directed by the goal of an ideal psycho-aesthetic maturity - this reformist
weaponry was harmless against a mechanism in which the thresholds be-
tween morality and law, art and pornography, private and public, floated
according to a variable codification of audience capacities presided over by
the law itself.
Somewhat ironically, the reform movement's campaign to rescue litera-
ture from the 'Procrustean bed of the law' was confronted by the depth of
the law's own role in the deployment of literature, not least in producing
and maintaining the channelled patterns of dissemination for nineteenth-
century erotica. Of importance in this regard was the creation of the private
circuit of distribution for the pornography of perversions, which differenti-
ated the form and consumption of that pornography from both the popular
pornography of the streets and the educative novel of the bourgeois home
and school. In this way the law became a precise condition of possibility for
the literary milieu. This was so particularly with the containing of a permit-
ted biblio-erotics to the private sphere of specialised ethical and erotic
capacities, an arrangement which, as we shall see, had a profound effect on
the form of the 'public' educative novel.
Given the law's constitutive role in actual deployments of printed litera-
ture, there can be no question of simply withdrawing the law from the
 The Pornographic Field 55
domain of biblio-erotics. In fact we must ask whether it was because of this
organisation of the literary field that a figure like D. H. Lawrence could take
as his project the transgression of the limits of erotic expression and the
aesthetic discovery of the 'long repressed' truth of our sexuality. As we
shall show in Chapter 4, Lawrence was simply the first to exploit a possi-
bility created by the legally-buttressed systematisation of the pornographic
field: that is, to merge the pornographic novel's perverse characterology
and 'micro-technics of delectation' with the dialectics of self-discovery and
aesthetic maturation characteristic of the educative Bildungsroman. Far
from being the exemplary explorer of a sexual truth beyond the law,
Lawrence was arguably the product of a distinctive and specialised nine-
teenth-century juridical patterning of the cultural field.
Notwithstanding that the novel of sexual education was in an important
sense the product of a juridified cultural field, its appearance nonetheless
triggered a change in the legal arrangements for this field. In joining the
austere public dialectic of Romantic aesthetic education to the delectable
private auto-erotics of the pornography of perversions, novelists like Law-
rence, Miller, and Burroughs in effect created a hybrid cultural artefact
moving at a tangent to the previous main lines of literary dissemination. As
long as this remained merely a local mutation in advanced middle-class
aesthetics and ethics - an eroticising of the old elite practice of Romantic
self-culture - the problem could be contained within the existing organisa-
tion ofthe field. Hence Lawrence's 'banned' novels in fact circulated in the
private zone of tolerated erotica throughout the 1920s and 1930s. Under
these circumstances the existing infra-legal specification of the pathological
character of pornography - its typology of susceptible persons and danger-
ous places - could remain intact. However, once it was decided to publish
such works in cheap unexpurgated editions aimed at a general market
something had to give.
The liberal attempt to replace the medical with an aesthetic specification
of pornography was the outcome of precisely these developments. The
decision to publish, however, was less an exemplary aesthetic challenge to
the 'repressive' powers of the law than a sign that the forms of infra-legal
regulation of biblio-erotics were in the process of changing. We can simply
note here a pointer developed in detail below: the old hegemony of sexual
medicine was being displaced by a new pedagogical deployment of sexu-
ally educative novels in the school system. If, then, it was proposed to
replace the pathological conception of pornography with one which treated
it as nothing more than the sign of a certain psychological and aesthetic
immaturity, this was not an indication that culture itself had reached a level
of maturity such that sex could be safely left to the privacy of the individual
56 On Pornography

conscience. Rather, it indicated that the ethical dialectics of desire and

norm, fantasy and utility, had themselves acquired a socially regulative
deployment in the educational apparatus. Here an expanded circulation of
educative erotica became possible, indeed imperative, as public policy, in
keeping with the wider pedagogical distribution of specific ethical-sexual
competences to the young. The new deployment, however, remained within
the field in which these competences varied along specific distributive
channels.
The legal threshold of obscenity continued to float. For example, in 1979
in the United Kingdom the Report of the Committee on Obscenity and Film
Censorship (hereafter the Williams Report) recommended that no work
consisting solely of printed matter should be liable to legal prosecution or
restriction for obscenity. It did so on the ground that readers had to choose
to read such works - an act which, it was argued, placed them in the extra-
legal domain of the private conscience. This recommendation is of course
a direct inversion of Justice Reynolds' decision that Curll was guilty be-
cause the speed and immediacy of print pre-empted choice and placed it and
its consumption in the public domain. This should occasion no perturbation
of the old judge's spirit, however. Far from signalling the abolition of the
threshold between private and public, ethics and the law, the Williams
recommendation simply registers one of its characteristic migrations. We
shall see in Chapter 6 that the Williams Report in fact re-invests the notion
of a coercive immediacy that defines the 'public' domain - this time in
photographic images - on the basis of calculating the kind of audiences
susceptible to this pornographic 'coercion of imagination'. The scope of the
exercise of private conscience also thus continues to vary with changing
calculations of the social distribution of particular ethical and cultural
competences and with assessments of the effects of particular
communicational technologies. Hence, so too must all attempts to reform
obscenity law by differentiating material that can be left to individual
morality from that which should be legally regulated.
3 Nineteenth-Century English
Obscenity Law
BEYOND CENSORSHIP

The historical episode is perhaps ending during which published sexual

writing was an important object of legal regulation. The legislative limits of
the episode are set by the Obscene Publications Act of 1857 (Lord Campbell's
Act) and the Obscene Publications Act of 1959, the key statutory construc-
tion being Regina v. Hicklin which in 1868 established as the test of
obscenity a publication's 'tendency to deprave and corrupt'. During this
episode, legal regulation of the publication of sexual writing was found both
plausible and necessary. By the late 1970s, to judge from the Williams
Report, this was no longer so: '[T]he printed word should be neither
restricted nor prohibited since its nature makes it neither immediately
offensive nor capable of involving the harms we identify, and because of its
importance in conveying ideas' (1979, p. 160). If opinions such as this
indicate a closing of the episode on philosophical grounds, others refer to
more general shifts in cultural conditions. Thus, buoyed with aesthetic and
psychoanalytic hope, Stephen Marcus argues that 'we are coming to the end
of the era in which pornographers had a historical meaning and even a
historical function' (Marcus, 1974, p. 285). For Charles Rembar (1968),
however, the appeal of written obscenity is at an end simply because the
young no longer get excited that way.
In Chapter 2 we suggested why, in writing the history of this episode, our
intention is to avoid the 'censorship model' exemplified not only in classic
literary historical works such as Thomas (1969) but also in recent legal
scholarship, for instance Robertson (1979). Censorship histories accord a
purely negative and extrinsic role to law as impeding the literary expression
of human sexuality. We have begun to suspect that in practice things were
somewhat less straightforward. Sexualities have a public character as spe-
cific historical and cultural artefacts. And as for making a clean break
between 'literature' and the 'Procrustean bed of the law', this might not be
possible once it is seen that these two fields have shared a deep reciprocity
in organising the cultural environment responsible for the distribution of
sexual sensibilities using print.
Our counter-history will not employ the tactic of invoking a universal

57
58 On Pornography

sexual self as the driving but always secret force behind works written
across the span from Tudor to contemporary times. Such a tactic is the sign
of over-commitment to an epic narrative of censorship as the key to the
nature and history of obscenity law. Under 'Origins of Censorship', Robertson
(1979, p. 20) thus takes his readers back to Ezekiel, Aristophanes andOvid
before returning to modem times by way of the Puritan's 'legacy of shame
and guilt about sexual pleasure which was never quite eradicated from the
national conscience and which created consumer demand for the new por-
nography'. Doubtless a glow of historical pedigree comes with the claim to
be part of the one continuous history of personal liberty (of which sexual
expression is made emblematic), but this is fit the price of losing the
specificity not only of different regimens of sexuality but also of the
historical discontinuities that mark the different regimes of English obscen-
ity law. The problem is exemplified by the title which Thomas chooses for
his concluding chapter: 'The Twentieth Century: "Plus ~a change ... "', as
it is by Robertson's (1979, p. 16) claim that '[t]he only lesson we learn from
the legal history of censorship is that the more the law changes, the more the
social reality remains the same'. It remains to be seen, of course, where our
own political calculations are concerned, whether our historical analysis
will avoid the fatalism which seems to be the condition of approaching
obscenity law through an undiscriminating censorship and personal liber-
ties narrative.
Our aim- unlike Marcus (1964), Robertson (1979) and Gay (1984)- is
not to indict the supposed hypocrisy and repressiveness of the Victorians
and, by extension, the flawed nature of nineteenth-century obscenity legis-
lation and law-enforcement. Instead, much of this chapter is expended on
historical description of what in fact were the particular forms of institu-
tional arrangements, infra-legal fields of knowledge, ethical practices and
governmental measures that made the Obscene Publications Act 1857 and
the 1868 Hicklin judgement intelligible to contemporaries. In our view, the
chance of reconstructing in some detail the terms of intelligibility of nine-
teenth-century legal regulation of obscene publications more than compen-
sates for losing the utopian option of participation in a trans-historical
struggle for sexual emancipation supposedly achieved through the blossom-
ing of sexual literature and the withering away of obscenity law. This means
rejecting the approach of studies as diverse as Rolph (1969), Pearsall (1976)
and Heath (1982).
Let us begin by turning the negativity of the censorship model on its head
and asking: Is it possible that obscenity law played a positive role in the
regulation of nineteenth-century sexualities and pornographies?
 Nineteenth-Century English Obscenity Law 59

MORAL TOXINS AND SOCIAL HARMS

A major obstacle to the study of nineteenth-century obscenity law is the

almost universal knowingness about it which is demonstrated by commen-
tators and historians for whom the Obscene Publications Act of 1857 and
the 'deprave and corrupt' test which gave the Act its construction simply
bespeak philistinism and ignorance, notably in their failure to respect the
difference between art and pornography. They also, it is said, bespeak
hypocrisy and irrationality in the failure to distinguish the immoral from the
socially harmful. Read in this light, the words and actions of nineteenth-
century legislators, jurists, law enforcers and law reformers become the
very exemplars of error, prejudice and illiberalism. Such knowingness is,
however, not without some problems of its own. It assumes that the two
distinctions which have come to lie at the heart of current concerns with
pornography - the one between art and pornography and the other between
the immoral and the harmful - should have governed nineteenth-century
arrangements too. We shall therefore dispense with this anachronistic no-
tion, incapable as it is of doing descriptive justice to the historical variabil-
ity of the field in which pornography has emerged, rather than laying claim
to know the truth about pornography.
Approached in this less anachronistic way, nineteenth-centirry English
obscenity law need not be convicted of the ignorance and hypocrisy which
later commentators have come to prize so highly in the Victorians. That law
begins to look less flawed and self-condemnatory. In fact, to anticipate the
argument, it is not the voice of ignorance and unreason which we shall
recover and listen to, but that of a once powerful, rational and highly
specialised domain of knowledge, law and government. This particular
sphere of legal and governmental reason, in which the object of knowledge
was inseparable from the objectives and norms of a particular system of
social supervision, was identified with the notion of 'police'.
Following Oestreich (1982), we use the term 'police' more broadly than
is usual in the Anglo-Saxon context. The continental etymology of the term
stems from 'policy', and in early modem absolutist states it was used to
name the general administration of all areas of life: economic, cultural,
religious, social and political. In England, Colquhoun's (1797) Treatise on
the Police of the Metropolis uses the term in this wider sense. It is notable
that broadly-based police programmes such as Colquhoun's - covering
everything from the medicalisation of prostitution to the regulation of food
vendors -were not legislatively enacted in England or America. However,
by the early nineteenth century less co-ordinated developments in a variety
60 On Pornography

of regulatory milieus -public health, education, welfare, domestic economy

-were linking up to form a broad network of social policing. 'Police' in the
narrower sense of police forces emerged in this same context. We use the
term in both the broad and narrow senses, as the context will make clear.
It was in the context of this network that conservative judges like Lord
Campbell and progressive social reformers like Elizabeth Blackwell could
come together in a common concern with the medical, moral and pedagogi-
cal harms caused in the street and the home by cheap auto-erotic literature.
This was a commodity whose uncontrolled circulation and consumption
threatened to corrupt the regenerate body and mind of the population. To
have done nothing to control this circulation and consumption would have
been to remain passive in the face of a disaster. We must therefore re-orient
ourselves: the Obscene Publications Act of 1857 and the Hicklin judgement
of 1868 mark the formal alliance of law to the network of social police. To
describe the 1857 Act, modern aesthetic and philosophical habits of mind
are unhelpful; what is needed is a sense of the objectives, knowledge and
norms which informed this network and provided the historical context in
which Victorian obscenity law was intelligible.
Introduced as a private member's Bill - the government, through the
Lord Chancellor, Lord Cranworth, was of the view that no additional
legislation was required and left the matter to Lord Campbell, the Lord
Chief Justice- the Obscene Publications Act of 1857, also known as Lord
Campbell's Act, was the British Parliament's first incursion into the field of
obscene publication. 1 Lord Campbell's motive was to establish an effective
machinery for the legal destruction of obscene publications under the pro-
visions for the existing common law offence of obscene libel. This new
machinery was to work largely through summary procedures administered
by magistrates and justices of the peace as part of a routine policing of the
streets. 2 The object was a statute whose provisions were directed

exclusively to works written for the single purpose of corrupting the

morals of youth and of a nature calculated to shock the common feelings
of decency in a well regulated mind ... [Such were the works of] people
who designedly and industriously manufactured books and prints with
the intention of corrupting morals.

(146 Hansard Parliamentary Debates, 3rd series 1857, pp. 327 ff.)

The mid-Victorian legislature did not pass Lord Campbell's Bill with open
acclamation and expressions of complete support. On the contrary, parlia-
mentary and extra-parliamentary opposition to the proposal ranged from the
 Nineteenth-Century English Obscenity Law 61

Lord Chancellor- in Lord Cranford's view the existing law was adequate
to the task - to organs of the legal profession such as The Justice of the
Peace, which voiced a characteristic criticism of the extensive powers of
search and seizure which the Bill sought to grant to complainants and to the
police:

Surely it could never have been intended that the complainant and the
police constable should be enabled to exercise such an irresponsible
power as would thus be given to them, and that the latter should be the
sole judge of whether the things which he may seize are of a kind and
nature of those sworn to by the complainant .... We most strongly object
to such a power being given to any constable, or, indeed, to any authority
whatever, until the things seized have been judicially condemned as
being obscene within the meaning of the Act; after which an officer of the
court which condemns them might be entrusted to destroy them before
one or more witnesses.

(The Justice of the Peace (1857), 21, p. 467,

quoted in Manchester, 1988, p. 230)

This commentator was evidently in no doubt that the strengthening of the

street-policing powers proposed by Lord Campbell's Bill was a distinctly
new and, from the viewpoint of the legal profession, problematic step in the
regulation of pornography. Hence the concern to recall that regulation to the
embrace of the judicial process in the strict sense, rather than to endorse the
granting to the police of a potentially excessive power of intervention and
action, given the absence of what were deemed adequate safeguards over
the responsible exercise of that power. Such evidence indicates what was at
most a muted enthusiasm, and in some quarters a definite lack of enthusi-
asm, for this private member's Bill, the legislative history of which under-
scores both the diversity of regulative mechanisms and agencies, and the
fact that the law itself had a limited role in such regulation.
As to our specific interest in the status of serious literature and its
treatment under the provisions of the Act, contemporary concern among
members of the legal profession extended to the possible mis-application of
the provisions of the Bill to what could be held to be reputable works of art
and literature. The Law Times commented as follows, at the moment of
debate on the Bill:

The Obscene Publications Bill of Lord Campbell ought to have been

deferred for maturer deliberation in another session .... Who would be
62 On Pornography

safe with such a weapon in the hands of fanatics? .... We do not fear its
use by sensible men, but its abuse . . . . It is not merely possible, but
probable, that two justices will be found to hold pictures, and statuary,
and books, which lovers of art look upon as art, to be 'obscene' within the
meaning of the Act, injurious to morals and offensive to decency. What
is to restrain them from doing that which they will conscientiously
believe to be a duty and 'putting down' the, to them, obnoxious objects?
We fear that Lord Campbell has not sufficiently reflected upon this.
(Law Times (1857), quoted in Manchester, 1988, p. 235)

A variation in the capacity to judge what is obscene is here located within

the legal profession itself. A certain concern was also expressed in the
House on the demarcation between obscene publications and works of
literary merit, Lord Brougham seeking to ensure that 'works of some of
[our] most eminent poets'(Hansard, Lords, 11 May 1857, CXLV, p. 329)
would not suffer prosecution. Lord Campbell, however, shared 'the Victo-
rian reverence for great Books':

[N]o twentieth-century legislator could have been more positive than

Lord Campbell that his proposals were in no way meant to interfere with
literature and the arts. And so he produced a copy of La Dame aux
Camelias and announced that, much as he disapproved of the book, he
had no wish to see such publications banned by the new law.
(Thomas, 1969, pp. 262-3)

This gesture came at the report stage.

As to enforcement of the Act once it became law, '[i]nvoking the Act
against literary or artistic works ... proved to be the exception rather than
the rule, and for the most part such works suffered no disability before the
law' (Manchester, 1988, p. 237). This assessment by Manchester is of the
essence; yet his account of how it was that obscenity law and serious
literature came into a more intimate contact later in the century perpetuates
the notion of a repressive official morality bent on censoring an expressive
literary culture. Such an account and such a notion need to be radically
revised if they are to fit the facts. When in the following chapter we enquire
how and why towards the end of the nineteenth century and into the
twentieth it became possible for works of literary merit to fall foul of
nineteenth-century obscenity law, it will not be a matter of of taking an
ironic distance from the supposed hypocrisy of the makers of the law
(Robertson, 1979, p. 29), nor of representing the Act of 1857 as fundamen-
 Nineteenth-Century English Obscenity Law 63

tally uncertain in its definition of obscenity (Williams Report, 1979, p.

168). The fact is that at this point in its history obscenity law was too
discriminating in its application to be reduced to a single mask for hypo-
crites; as for pornography, it was a readily recognised commodity.
The 1857 Act created no new offence, its purpose being to give magis-
trates authority to destroy matter which, in their judgement, was obscene. In
practical terms, this authorisation established a machinery for policing
pornography: a summary procedure allowing the routine seizure and de-
struction of offending publications. The police, armed with a magistrate's
warrant, could enter premises in search of suspected matter. Where this was
found, it could now be seized and brought before the magistrate, who could
then issue a summons to the occupier of the premises, requiring cause to be
shown why the matter should not be destroyed. Although no criminal
penalty was imposed, the printer, publisher or bookseller whose stock was
seized risked having that stock destroyed by order of the court. As Robertson
observes, 'the burden of proving that the material was not obscene lay on
the bookseller'. And he adds an important detail:

[T]o put a pornographer in prison, the prosecutor had to give the pub-
lisher the option of trial by jury and had to prove the obscenity of his
books beyond a reasonable doubt. The House of Commons inserted two
further safeguards before enacting the Bill: a right of appeal to a judge at
Quarter Sessions and a requirement that the prosecutor prove that the
offending book was actually for sale to the public. Lord Campbell acqui-
esced in these amendments, and looked forward to a time 'when Holywell
Street would become the abode of honest, industrious handicraftsmen
and a thoroughfare through which any modest woman might pass'.

(Robertson, 1979,pp. 28-9)

This reference to street life is more than an incidental image in Lord

Campbell's speech. The law endows police and magistrates with powers to
be exercised in the meaner streets of the metropolis and other urban centres,
powers whose enforcement will enjoy a significant autonomy from the
specifically judicial regulation of pornography. That the spheres of the law
of obscenity and the policing of pornography overlap yet diverge illustrates
the fact that we are dealing with a field in which the law plays a limited,
albeit a definite role.
In Parliament, John Roebuck MP characterised Lord Campbell's Bill as
'an attempt to make people virtuous by Act of Parliament' (Hansard, 12
August 1857, CXLVII, p. 1475), expressing his doubt that legislation could
64 On Pornography

determine moral conduct where vulnerability to or taste for obscene publi-

cations were concerned. Here a different limit to law is evoked, an appeal
to an unbridgeable gap between law and morality that has not ceased to
function as a powerful rhetorical ploy, as arguments for the liberalisation of
obscenity law in the 1960s were to testify. However, during the nineteenth
century, public legislation and private moral taste were brought into a new
proximity through the emergence of social policing with its new technolo-
gies of governmental concern, investigation and supervision. Against this
background of the medical, civil and assistantial network, Lord Campbell's
Bill emerges as a 'police' measure, conditioned by the gradual emergence
of an urban police force, and directed at a cheap pornography which by the
available criteria of the time was rationally judged to constitute a threat to
the moral and physical well-being of the urban popular classes.
The Act met with variable success. Late in 1857 Lord Campbell noted in
his diary that its 'success has been most brilliant'. Holywell Street, he
wrote, had been so decisively transformed by the policing initiative that
some shops had closed while others had shifted to the alternative trade
staple of 'moral and religious books' (quoted in Manchester, 1988, pp. 228-
9). By most accounts, a period of vigorous enforcement accorded an initial
efficacy to the move 'to give additional powers for the Suppression of the
Trade in Obscene Books, Prints, Drawings, and other Obscene Articles' as
set out in the Preamble to the Act. Yet by the late 1860s - in a much-cited
characterisation of Holywell Street first recorded in the Saturday Review of
5 December 1868- 'the dunghill is in full heat and steaming with all of its
old pestilence'. Atthe time of the Hicklin judgement, the picture is therefore
one of a reduced level of policing of popular pornography, or at least of a
fluctuating pattern of concern with the traffic. It would be unwise to read
too much into alleged failures of the Act. As a police measure, its objective
was not to extirpate the publication of pornography as an illegal act but to
regulate it in accordance with the objectives of a social and moral policing
of the population. In this regard, the periodic failures of the measure in fact
serve as testimony to the ongoing vitality of the ethical-political objective,
each 'failure' signalling a new regulatory drive.
If the sensibility of certain categories of person to certain types of printed
matter was being transformed into a concern of policing, this was not due
to the ascendancy of a censorious and hypocritical morality on the part of
the Victorians. Rather, it was a result of the fact that- having crossed into
the space of governmental concern and supervision through the develop-
ment of a new technology of watchfulness - the taste for pornography was
becoming the target of two initially distinct but soon intersecting agencies.
First, a metaphorics of contagion and a mapping of 'dangerous places'.
 Nineteenth-Century English Obscenity Law 65

These were the product of a whole series of voluntary and state investiga-
tions of the city which traced the distribution and disposition of the popu-
lation in terms of a set of overlapping threats to its health, decency, good
order and well-being. It was in the context of such 'moral topographies'
that cheaply-printed pornography could appear as a noxious substance
and a contagious threat to insufficiently socialised and self-protecting
sensibilities.
Second, the specialist knowfedges of moral psychology and sexual medi-
cine. Here -as in Elizabeth Blackwell's warnings concerning the consump-
tion of pornography by children - moral danger and physical pathology
were linked at the level of the individual mind and body. This was achieved
through a moral physiology which in effect transformed medical pathology
into a source of admonitory images used for an ethical discipline of the self
while simultaneously bringing the latter within the confessional sphere of
the doctor-patient relationship. It was here, primarily in the context of the
great anti-masturbation campaigns directed at the bourgeois family, that the
failure to resist the incitements of erotic words and images became intelli-
gible in terms of a general debilitation of body and soul.
Lord Campbell's references to poison and obscene publications regain
their historical intelligibility when read against these dual agencies:

[F]rom a trial which had taken place before him on Saturday, he had
learned with horror and alarm that a sale of poison more deadly than
prussic acid, strychnine or arsenic - the sale of obscene publications and
indecent books - was openly going on.

(Parliamentary Debates, 1857, p. 103)

The reference to poison is not symptomatic of the excesses of a Victorian

mentality which erroneously conflated moral distaste with physical harm.
Joining the metaphorics of moral contagion aimed at the urban popular
classes to the medical specification of the middle-class individual's moral
pathology, this formulation indicates the emergence of a powerful social
apparatus - a new configuration of the pornographic field - in which the
taste for erotic literature indeed became a then quite proper object of
governmental intervention and legal regulation.
Not so long ago it was easy for us to smile knowingly at this 'repressive'
and 'unscientific' stigmatisation of erotica. Today these smiles are fading.
The recent return of the rhetoric of pornography as a social harm suggests
that current changes represent mutations in the regulatory apparatus which
first emerged in the nineteenth century, not its definitive superseding. In
66 On Pornography

other words, pornography's power to join moral and physical harm was not
a chimera of Victorian ignorance and irrationality. It was a sign of the
pivotal place that erotic words and images came to occupy at the juncture
where the policing of the streets met the government of the self.

THE HICKLIN DICTUM AND UNDOUBTED OBSCENITY

The Obscene Publications Act of 1857 gained its definitive construction

when, in 1868, Lord Campbell's successor as Lord Chief Justice, Sir Alex-
ander Cockburn, made some observations on the distinguishing features of
that species of publication liable to the charge of criminal obscenity. These
observations became ubiquitous - in England, the United States, Canada
and Australia - as the standard test used in proceedings relating to the
common law offence of obscene libel. They were also to acquire a statutory
existence- in an only slightly altered form- as the test for obscenity under
the English Obscene Publications Act of 1959. Familiar though they are, the
terms of Cockburn's dictum are so central to any reconstruction of English
obscenity law that quotation is imperative:

I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences, and into whose hands a publication of
this sort may fall.

(Regina v. Hicklin, p. 371)

As the Hicklin test for criminal obscenity, this became authority.

The case involved a destruction order made in the Wolverhampton mag-
istrates court, an appeal against that order to Quarter Sessions, and a review
of the ruling of the Quarter Sessions by the Queen's Bench Division of the
High Court. The detail is as follows: under the forfeiture and destruction
provisions of the 1857 Act, the Wolverhampton Justices authorised police
seizure of a pamphlet, The Confessional Unmasked: Showing the Depravity
of the Romish Priesthood, the Iniquity of the Confessional, and the Ques-
tions put to Females in Confession. The title recalls a specific literary
arrangement we have already noted: the unforeseen exchange between
spiritual confession and profane detailing of sexual possibilities. The Jus-
tices were responding to a complaint by a police officer acting at the
direction of the Borough Watch Committee. 252 copies of the pamphlet
were seized and after inspection by the local Justices - Benjamin Hicklin
 Nineteenth-Century English Obscenity Law 67

among them- their destruction was ordered on the grounds that the text was
in part obscene.
The publication was not new, having seen a number of editions since
1836. It contained an anthology of extracts from the Catholic theologians
Dens and Liguori, together with shorter selections from Bailly and
Cabassutius, focussed on the practice of confession. They were printed in
Latin on one side of the page, with English translations facing. The charac-
ter of the extracts was not uniform, some dealing with doctrinal and casuistical
matters and others, in a manner that the magistrates had no hesitation in
finding obscene, with the conditions of 'females in confession'. There was
also a preface in which, as in the commentary on the extracts, the editor
attacked Catholic practices and beliefs: 'In the later part of the pamphlet I
have given a few extracts without abridgement, to shew into what minute
and disgusting details these holy men have entered. This alone has been my
object, and not the filling of the work with obscenity' (Regina v. Hicklin,
p. 362n). The copies seized came from the stock of an edition of The
Confessional Unmasked that, together with the plates from which it
was printed, had been bought from a William Strange, 'very possibly the
same William Strange who had been sent down for three months by Lord
Campbell in 1857 for selling obscene literature' (Thomas, 1969, p. 264).
The buyers were the Protestant Electoral Union, a society committed to
protect the Protestant tradition and to resist Catholicism in England.
A member of the Protestant Electoral Union, a Wolverhampton metal
broker Henry Scott, had then purchased copies from the Union's head office
in London. Scott, 'a person of respectable position and character' (Regina
v. Hicklin, p. 362), was the subject of the prosecution when the pamphlets
were seized in his dwelling house. Faced with the detail of the sexual
confessions illustrating the immorality of Catholic practice, the Justices
moved to have the material destroyed as an obscene libel.
Scott, however, appealed against the destruction order, taking his case to
the Quarter Sessions where the Recorder found that publication of the
pamphlet was redeemed by its moral objective, a religious conviction that
was in no sense indictable. Scott's intention, it was argued, was not to
corrupt public morals, but to promote the case of the Protestant Electoral
Union by exposing the 'iniquity of the confessional'. Nonetheless, recog-
nising the legal implications of the case, the Prosecution asked the Recorder
to put the matter up for consideration by a Queen's Bench Divisional Court.
The ruling of the Wolverhampton Justices was therefore quashed, condi-
tional on confirmation by the Court of Queen's Bench that, on the stated
facts, Scott's possession, sale and distribution of The Confessional Un-
masked was not a misdemeanour within the meaning of the Obscene
68 On Pornography

Publications Act 1857. Such confirmation was not, however, forthcoming.

Lord Cockburn and his fellow judges unanimously affirmed the original
destruction order.
Despite the cardinal importance of Hicklin- the Williams Report (1979,
p. 169) comments that 'the test thus enunciated had a tremendous effect'-
errors have crept into accounts of it. Tribe (1973, p. 65) has Hicklin as the
Quarter Assizes Recorder, although it was of course the Recorder who
quashed Hicklin's original destruction order; also, when citing the full title
of the work, Tribe gives 'Immorality' in place of 'Iniquity' (p. 64). Thomas
(1969, p. 264), perhaps determined to miss no chance of depicting the
repression of literature by law, makes Scott a 'Wolverhampton bookseller',
not a metal broker. Even the Williams Report (1979, p. 169), having
decided to mention the location from which The Confessional Unmasked
was seized, misleadingly refers to the 'premises' of Henry Scott, when in
fact the raid had been on his dwelling-house, thus losing the sense of Scott
as metal broker acting as concerned private citizen rather than as someone
operating commercially from 'premises'.
More than detailed rectifications of fact, however, a sense of the legal-
cultural environment of Hicklin is required if we are to grasp the contempo-
rary intelligibility of Cockburn's celebrated dictum. Histories of obscenity
law usually accord Hicklin its importance in terms of dire and nefarious
consequences, a characteristic account describing it for instance as 'one
passing judicial comment which has survived the passage of time and which
returns regularly to plague the courts and parliaments of England, America
and the common-law world' (Robertson, 1979, p. 30). Putting aside its
hyperbole, we can nonetheless take from this remark a pertinent fact.
Cockburn's epochal definition of obscenity was indeed, in the context of the
judgement as a whole, just 'one passing judicial comment'. Re-reading the
legal text, we find no sense whatsoever that a definition of obscenity was
what everyone was looking for.
It was the moral and religious aspect of the work in question which had
led the Quarter Sessions to seek the higher court's review of the ruling. That
aspect, and Scott's expressed intention in publishing the pamphlet, focusses
the reasoning of the Queen's Bench judges. In other words, even though the
1857 Act had passed into law unaccompanied by any statutory definition of
obscenity, the judgement in Hicklin does not, in the first instance, read like
a calculated piece of statutory interpretation. 3 'Obscenity' is not recognised
as being problematic in its reference or in need of legal definition. The
celebrated phrase - it does not even constitute a complete sentence - is
lodged inside a substantial paragraph in which, both before and after the
definition, Cockburn wrestles with the problem of Scott's intent. Nor does
 Nineteenth-Century English Obscenity Law 69

the Lord Chief Justice offer any elaboration of the terms of his definition,
other than to reiterate, later in his comments, what he has already said:

I cannot suppose but that they had that intention which constitutes the
criminality of the act, at any rate that they knew perfectly well that this
work must have the tendency which, in point of law, makes it an obscene
publication, namely the tendency to corrupt the minds and morals of
those into whose hands it might come.
(Regina v. Hicklin, p. 373)

None of Cockburn's fellow judges shows any sign of recognising some-

thing epochal - or even something useful and needed - in these definitions
of obscenity.
This is not surprising. The Queen's Bench had not been asked to rule on
whether The Confessional Unmasked was or was not obscene. The point at
issue was whether an honest purpose could justify a criminal act of obscene
publication. The Lord Chief Justice cites precedents to support the rule
whereby 'when the act is in itself unlawful ... the proof of its justification
or excuses lies in the defendant; and in failure thereof, the law implies a
criminal intent' (p. 364) and 'every man, if he be a rational man, must be
considered to intend that which must necessarily follow from what he does'
(p. 369). Noting his disagreement with the Recorder, the Lord Chief Justice
then comments:

I think that if there be an infraction of the law the intention to break the
law must be inferred, and the criminal character of the publication is not
affected or qualified by there being some ulterior object in view (which
is the immediate and primary object of the parties) of a different and of
an honest character. (p. 370)

As an explicit construction of the 1857 Statute, Hicklin is in one sense

rather thin. The Wolverhampton Justices had no doubt that their destruction
order fell within the meaning of the Act. In his comments, Lord Cockburn
refers to sections of the Act but in a quite unproblematic way, to confirm
that under the Statute the mere possession or sale of a work 'in a certain
sense obscene' is not in itself sufficient for an indictment, but that the
circumstantial intention must be established: 'the question is therefore quo
animo was the publication' (pp. 367-8). Justice Blackburn opened his
comments by confirming that the Statute was 'for the more effectually
preventing the sale of obscene books'. He read the first section of the Act
and then outlined the procedures to be followed in a prosecution:
70 On Pornography

Now what the magistrate or justices are to be satisfied of is that the belief
of the complainant is well founded, and also that any of such articles so
published for any of the purposes aforesaid, are of such a character and
description that the publication of them would be a misdemeanour, and
that the publication in the manner alleged would be proper to be pros-
ecuted; and having satisfied themselves in respect of those things, the
magistrates may proceed to order the seizure of the works. And then the
justices in petty sessions are also in effect to be satisfied of the three same
things; first, that the articles complained of have been kept for any of
the purposes aforesaid, and that they are of the character stated in the
warrant, that is, that they are of such a character that it would be a
misdemeanour to publish them; and that it would not only be a mis-
demeanour to publish them, but that it would be proper to be prosecuted
as such; and then, and only then, are they to order them to be destroyed.
I think that with respect to the last clause, that the object of the legislature
was to guard against the vexatious prosecution of publishers of old and
recognised standard works, in which there may be some obscene or
mischievous matter. (pp. 373-4)

The final remark raises the possibility that the concept of obscenity might
have been in need of defmition, but on balance the judge's words seem to
refer less to a problem than to a wise provision of the Statute. Later he
recalls Regina v. Moxon, the prosecution for blasphemous libel half a
century earlier involving Shelley's Queen Mab, but only to distance himself
from that judgement ('I believe, as everybody knows, that it was prosecu-
tion instituted merely for the purpose of vexation and annoyance.'). The
judge then reflects on the 1857 Act and offers the reassurance that 'I think
the legislature put in that provision in order to prevent proceedings in such
cases' (p. 374).
In other words, for the Bench, adequate statutory provision had been
made to distinguish between obscene and non-obscene writings. No hint is
given that the drawing of that boundary requires an explicit act of interpre-
tation. Justice Blackburn makes no further mention of the Statute, but
comments instead on the all-important issue of intention in terms identical
to those of the Lord Chief Justice. Only in a remark of Justice Mellor on the
subject matter of the pamphlet - confessional practices - might some doubt
concerning the obscenity of the item seem to reside:

The nature of the subject itself, if it may be discussed at all (and I think
it undoubtedly may), is such that it cannot be discussed without to a
certain extent producing authorities for the assertion that the confessional
 Nineteenth-Century English Obscenity Law 71

would be a mischievous thing to be introduced into this kingdom; and

therefore it appears to me very much a question of degree, and if the
matter were left to the jury it would depend very much on the opinion
which the jury might form of that degree in such a publication as the
present. (p. 378)

Perhaps there is a suggestion in this hint that erotic writing cannot even be
cited for the purposes of discussion without provoking a certain incitatory
effect, a point made in Chapter 2, it being a peculiarity of pornography that
even as an object of knowledge and judgement it cannot be entirely de-
tached from the excitation of the knower or the judge.
The text of Hicklin thus provides little evidence that the judges of the
Queen's Bench saw themselves confounded by the absence of a clear idea
of obscenity. In assuming such a lacuna, historians of obscenity must be
suspected of anachronism. It is certainty, not doubt, which characterises the
court's handling of obscenity. There was no doubt because obscene publi-
cation was defined not in the abstract but concretely and circumstantially by
its mode and place of dissemination, that is, by its demographic targets.
However, in talking of certainty, it remains important not to imply that the
judges were locked into some iron-clad ideology which blinded them to the
reality of (what has since become) the slippery concept of obscenity. The
question is rather: What allowed the judges of the Queen's Bench in 1868
to be so certain about obscenity that definition of the concept occupied so
little of their time? From the historical viewpoint, this certainty calls for
explanation, not denunciation.
The multiple answers to the question of why the court in Hicklin was so
unconcerned with the definition of obscenity do not tum on a crude socio-
logical characterisation of the judges as the mere vehicles of a class mental-
ity functionally determined by the structure of mid-Victorian society. We
shall look first towards explanations involving the specialist infra-legal
know ledges- sexual medicine and moral psychology- which informed the
network of policing agencies.
The criteria and classifications which at the time of Hicklin organised
knowledge of moral character no longer provide us with an admissible
characterology, except perhaps at the level of our common sense, that
sedimentation of former knowledges. The Wolverhampton justices, the
Recorder of Quarter Sessions and the Judges of Queen's Bench could
identify 'obscenity' without hesitation because of their capacity to work
within the knowledge .that morality was positively connected to health and
that, in those who lacked the appropriate prophylactic preparation, moral
health was damaged by exposure to obscene words and images. The 'de-
72 On Pornography

prave and corrupt' formulation of Hicklin was anything but idiosyncratic.

What was known and applied was the social-medical norm which helped
organise that world of which Lord Cockburn and Elizabeth Blackwell were
exemplary denizens. Sexual medicine, as suggested in Chapter 2, linked
bodily health to the purity of the mind and the pathology of the individual
to that of society and the population at large. Pornography had gained but
not yet lost its power to harm- a power which it is perhaps regaining among
us today.
It was also known that not all individuals or populations were equally
vulnerable to the harms defined and treated by the moral physiologists.
Hicklin specifies 'those whose 'minds are open to such immoral influences,
and into whose hands a publication of this sort may fall'. More than a
specification of the attributes defining what will count as a vulnerable
person, the second element of this formulation is an indication of a certain
social space in which that person's vulnerability will be most exposed to
exploitation by the distributors of pornography. It is not just that the minds
and hands in question are weak, but that in certain specified places pornog-
raphy falls - more noxiously and purposively than the gentle rain from
heaven -into those minds and hands. These places are the streets of the city
where the vulnerable were directly exposed to the harms of pornography.
Here - cognisant of the medical-moral norm we have described - the law
found itself working alongside the police (the latter using measures not
necessarily juridical in form) to manage the reading of the popular classes.
Given her expressed concern, Dr Blackwell would have required no less.
Precisely this concern is visible in the emphasis placed in Hicklin on the
circumstances of the harming done by exposure to obscene publication:

This work [The Confessional Unmasked] ... is sold at the comers of

streets, and in all directions, and of course it falls into the hands of
persons in all classes, young and old, and the minds of those hitherto pure
are exposed to the danger of contamination and pollution from the impu-
rity it contains. (p. 372)

Earlier, the court had made the following explicit observation on the cir-
cumstantial nature of obscene publication:

A medical treatise, with illustrations necessary for the information of

those for whose education or information the work is intended, may, in a
certain sense, be obscene, and yet not the subject for indictment; but it
can never be that these prints may be exhibited for anyone, boys and
girls, to see as they pass. The immunity must depend upon the circum-
stances of the publication. (p. 367)
 Nineteenth-Century English Obscenity Law 73

This is a recognition that serious works - medical treatises or literature -

might indeed fall within the scope of obscenity statutes when distributed to
those whose taste was not fully formed (schoolchildren) or in a form
calculated to 'exploit' those classes outside the precincts of ethical tutelage
(cheap reprints sold on the streets). No doubt some people today are in-
clined to mock this demographics of moral vulnerability and even the
notion of vulnerability itself, despite the feminist assault on such compla-
cency. For our part, we remain more hesitant to dismiss out of hand the
nineteenth-century capacity to identify moral offence and personal harm
occasioned by pornography to certain categories of person in certain cul-
tural circumstances. The 'deprave and corrupt' criterion for obscenity does
not reduce to paternalist and bourgeois moral prejudice. It is not so empty
of real content. On the contrary, it is perhaps too full - of the moral,
medical, psychological, demographic and administrative knowledges from
where derived the specific norms to which nineteenth-century obscenity
law was oriented. That law presents moral-medical aetiologies more com-
plex than we can immediately comprehend.
Since 1868, an edifice has been built upon the words of Lord Cockburn
and his colleagues. Lodged in early textbooks such as Stephen's Digest of
the Criminal Law and Archbold's Criminal Pleading, the 'tendency to
deprave and corrupt' became the standard criminal law test for obscene
publications.4 The important task now is to sketch its career without col-
lapsing the historical variations of obscenity law and the policing of por-
nography into a single story of personal right, human sexuality and literary
expression struggling against the dark forces of law and censorship. That
would be a story of repression, not a history of legal regulation and policing.
Given this safeguard, there is some chance of restoring to obscenity law its
positive but limited place in the mid-nineteenth-century complex of state
and private programmes for collective and individual welfare, a complex in
which distinct strategies to regulate pornography converged, sometimes in
unexpected ways.

VARIABLE OBSCENITY

One sign of the practical and para-judicial character of the nineteenth-

century policing of obscenity is the miscellaneous array of instruments and
institutions which supported that policing. The Obscene Publications Act of
1857 and the Hicklin dictum were not the only mechanisms for regulating
obscene publication. Other nineteenth-century statutes relating to obscenity
included the Vagrancy Acts of 1824 and 1838, the Metropolitan Police Act
of 1839, the Libel Act of 1843, the Theatres Act of 1843, the Town Police
74 On Pornography

Causes Act of 1847, the Post Office Act of 1870, the Public Health Act of
1875, the Customs Consolidation Act of 1876, the Post Office (Protection)
Act of 1884, and the Indecent Advertisements Act of 1889. Merely to list
these titles suggests something of the heterogeneous character of the admin-
istration of pornography. This unplanned regulatory concert can be
schematised as a graduated scale, at one end of which are minor offences
involving indecent handbills, sandwich-boards, placards and shop-window
displays. These are tried in courts of summary jurisdiction by magistrates
and justices and carry relatively light sentences to a maximum of forty
shillings or one month in prison. Such offences and sentences constitute the
legal infrastructure for keeping public order on the streets, and are dealt
with by the police, often in an informal manner by the issuing of warnings.
The police develop their own tests and classificatory mechanisms. The
offenders - shopkeepers, street comer sellers, itinerant pedlars - appear to
have accepted this policing as part of the particular commercial system
within which they operated.
At the other end of the scale are the common law provisions. Here,
obscene publication is constituted as a serious misdemeanour, handled
under the criteria and procedures built up by the courts since the early
eighteenth century. Obscene publication is here less a street offence subject
to policing by the local constable than the descendant of the common-law
delict ef obscene libel which, as we have already noted, emerged when an
obscene libel which defamed no one was recognised to be a corruption of
the morality of everyone, and when with Curll' s case in 1727 the Sedley
precedent was imported into the newly-expanding domain of print publica-
tion and dissemination. At this high end of the scale lie the ceremonial of
trial by jury and the heavier penalties faced by 'grossly indecent' materials.
How does the Obscene Publications Act of 1857 relate to this spectrum?
The Act retained the existing common law offence of obscene libel. It
classified the conditions under which the police could enter and search
premises, and seize and destroy materials found to be obscene. Proof of
exhibition and sale had to be obtained by police or informants purchasing
materials, following which the magistrate or justices could issue the search
warrant. The police as prosecutor could then seize the materials, returning
with them to the magistrate who, unless a change of mind had occurred
since the issue of the search warrant, could issue a destruction order. This
summary procedure was embodied in the Act for use by the police against
street pornography.
However, the Act also allowed an appeal by a defendant to a judge at
Quarter Sessions and provided for jury trial under the common law. It thus
connected, at least in theory, the routine policing of the streets and the
 Nineteenth-Century English Obscenity Law 75

ceremonial trial of condemned works, where the jury could speak for the
entire community on what the state of public morality was to be. Across this
bridge it became possible for the objectives and norms of moral policing to
meet up with laws governing public morality and health. It was here that
'classics' could become caught up in the regulation of the circulation of
socially harmful and dangerous commodities. This connection is mani-
fested in the text of Hicklin. In a single sweep, reference is made on the one
hand to what the 'boys and girls ... see as they pass' and to the works 'sold
at the comers of streets' (Regina v. Hicklin, pp. 367, 372); and, on the other,
to the dignity of Juvenal and Chaucer, Milton and Dryden, Byron and Bayle
before an appropriately respectful law (p. 365).
If taken to imply that serious works could appear only at the common law
end of our scale, this listing of classics is misleading. On the contrary, the
evidence of prosecutions demonstrates that established literary works had
no uniform condition of existence under the law. If and when they entered
the 'penny edition' circuit, Boccaccio, Balzac, Maupassant and Zola could
become objects of routine street comer policing. In Regina v. Thomson, for
instance, a London bookseller was in 1900 charged with having published
'a certain lewd, wicked, bawdy, and obscene libel in the form of a book
entitled The Heptameron of Margaret Queen of Navarre'. The publication
had come to the attention of the Metropolitan Police, for whom Inspector
Arrow testified. In opening for the prosecution, R. D. Muir 'suggested that
though it was a classic in the French language it was not a classic in the
English language'. However, more than with a matter of incompatible
national literary canons, in the words of the Common Sergeant's summing
up of the case to the Central Criminal Court jury the court had 'to deal with
the time and circumstances under which the book was put forth': 'If it had
been in a library to which students had access, no one would deny that the
book was properly there and properly kept for a proper use' (Regina v.
Thomson, p. 457). Some half-century before it dawned on literary theorists,
the police were thus aware that the meaning and effects of literature varied
with the circumstances of its consumption and the cultural capacities of its
users. As we shall see in Chapter 6, this pragmatic dependence of obscenity
on the variable strategies of its policing would later pose major difficulties
for its jurisprudential definition, codification and reform. In the event,
Margaret Queen of Navarre was found fit to read.
Earlier, in 1888, action had been taken against Henry Vizetelly, the
London publisher of translations of Gautier, Flaubert, Daudet, Maupassant
and Zola. If the Vizetelly prosecution is the first example of the successful
use of the 1857 Act against works which might be deemed to be of literary
merit, two comments are appropriate. If it took more than thirty years from
76 On Pornography

the passage of the Act or twenty years from Hicklin for there to occur this
ftrst example of the law being successfully invoked against literary works,
a question must be raised about the standard censorship account of the
effect of Victorian obscenity law. Robertson (1979, p. 30) claims that,
'[a]rmed at last with a definition of obscenity, Victorian prosecutors pro-
ceeded to destroy many examples of fine literature'. Set against the fact of
a single successful literary prosecution in the twenty central years of the
Victorian era, such indignation and hyperbole is simply wrong. Yet the
standard account is what underpins the received historiography of obscenity
law. As if indifferent to what actually happened, the 'censorship' story
endlessly returns to a fundamental and unchanging dichotomy between
literary subjectivity and the generalised repressive agency of obscenity law
depicted as blanket censorship.
The second comment concerns the way the conduct to which obscenity
law applies - publication - is habitually represented as an invariant and
transparent adjunct of subjectivity. Literature and publication have their
histories. What counts as literature has changed, as have the uses made of
published writings. It is therefore anachronistic to set a fourteenth-century
collection of satirical folk-novellas and a nineteenth-century naturalist novel
alongside one another as 'literature', imagine their prosecution and con-
clude with the usual observation on the philistine repressiveness of Victo-
rian obscenity law. In the following chapter, therefore, we consider the
possibility that with writings such as those of Zola or - more particularly -
of D. H. Lawrence, serious literature had entered into a new and unforeseen
relation with sexuality and the pornographic genre. For the moment it is
enough to note that the aesthetic (and ethical) certainty implied by
Robertson's phrase- 'many examples of ftne literature'- may turn out to
be quite misplaced. As we have seen, for the police the difference between
lascivious material and improving literature was not inherent. It depended
on where and to whom the literature was disseminated, how and by whom
it was used. In showing a pair of clean and pragmatic pair of heels to
modem reader-response theories, the nineteenth-century policing of erotic
writing is also more subtle and flexible than twentieth-century attempts to
write the history of obscenity law in terms of the censorship of a putatively
self-evident and constant phenomenon called 'literature'.

THE LAW AND THE POLICE

To the suggestion that in the nineteenth century actual prosecutions against

serious literature were rare, we can imagine a response that ties this rarity
to a widespread adoption of procedures of self-censorship by authors of
 Nineteenth-Century English Obscenity Law 77

sexually expressive works in the face of the law of obscenity. In the

following chapter, we shall give some good reasons why such a response is
ill-conceived. For now, however, this response is useful insofar as it directs
attention to the possibility of a diversity of regulatory mechanisms. And
indeed, when we look, we find a miscellany of agencies, private and public.
The Proclamation Society was founded in 1787 by William Wilberforce,
following a royal 'Proclamation for the Encouragement of Piety and Virtue;
and for preventing and punishing Vice, Profaneness, and Immorality'. The
Society for the Suppression of Vice and the Encouragement of Religion and
Virtue superseded the Proclamation Society in 1801, enjoying a long and
active career as the Vice Society. In the 1860s, the Duke of Argyll's Society
for Pure Literature was active, while in 1886 from the National Vigilance
Committee there emerged the National Vigilance Association for the
Repression of Criminal Vice and Public Immorality. This incorporated
the Society for the Suppression of Vice, the Minors' Protection Committee
and the Belgian Traffic Committee, and merged in 1891 with the Central
Vigilance Society.
As with the array of nineteenth-century statutory provisions, there is no
uniformity of concern between or indeed within these civic societies and
their endeavours. Just as Elizabeth Blackwell's pathologising of exposure
to erotic writing and imagery now seems to jar with her feminist and
socialist aspirations, so Wilberforce's attack on such writing does not sit
easily with his attack on slavery, at least for the modem assumption that
unless emancipation is general we do not properly have emancipation. The
same is true of the National Vigilance Association with its actions against
literature on the one hand - it was instrumental in bringing the 1888
Vizetelly prosecution - and its work against child prostitution and enforced
incest on the other.
The law was not, however, hostage to these civic societies. While all of
the nearly forty prosecutions for obscene libel brought by the Vice Society
up to 1817 were successful, the Society's request for power of arrest to be
made available to private citizens to seize persons distributing or selling
obscene materials was not accorded when the Metropolitan Police Act of
1839 passed into law. Indeed, despite the increased powers made available
by this statute and the Obscene Publications Act of 1857, the authorities
appear to have been reluctant to set the law in motion, and without such
official assistance, the civic bodies were inadequate to the task they set
themselves. In part because of the increasing dissemination of pornography
by mail, police interest fluctuated. 'Cases were brought from time to time
but not with sufficient frequency to prevent the bookshop trade from re-
establishing itself around Holywell Street' (Manchester, 1988, pp. 232-3). 5
Again, too much should not be read into the supposed failure of regulatory
78 On Pornography

initiatives whose object was to channel, not to eradicate, pornographic

materials. Nor should we forget that such basic practical determinants of
legal action in relation to obscene publication as the locus of entitlement to
prosecute - are charges to be brought by private individuals or should the
Crown alone have the carriage of criminal prosecution? - were not yet
codified into their modem form.
The miscellany of agencies in the field is further attested by a document
which affords an excellent overview of nineteenth-century arrangements.
Between March and June 1908, a Joint Select Committee of the Commons
and the Lords inquired into the laws on lotteries and literature, pictures and
advertisements 'relating to things indecent and immoral', and in late July
1908 brought down its Report from the Joint Select Committee on Lotteries
and Indecent Advertisements (hereafter, the 1908 Report). A single com-
mittee to review laws relating to lotteries and to obscenity is today unlikely;
however, the configuration of the Committee's brief exemplifies the par-
ticular 'series' in which obscene publications could intelligibly be placed at
that time. Obscene publication was located among other street dangers to be
regulated for the sake of the moral and physical well-being of urban
populations. Within the one sweep of concern came lotteries which took the
family man's wages, advertisements for 'female ailments'- 'Dr Paterson's
famous female pills which remove irregularities, suppressions, and so on by
simple means in a few hours' (1908 Report, p. 42)- advertisements of the
'Malthusian kind', that is for birth control and abortificients, and exhibi-
tions of indecent pictures through bioscopes and 'mutoscopes':

[T]he exhibition ... was prosecuted on a Sunday night at the Elephant

and Castle, and at the very least estimate the number of persons, boys and
girls, there was over 300. They are indulging in all sorts of indecent acts
among themselves, and two were looking round picking out the different
machines which bore the most seductive titles and which they thought
contained the worst pictures - a boy and girl each spying on the payment
of 1/2d. in the same machine, touching one another in an indecent manner,
and making use of very indecent language. (pp. 44-5)

The diverse issues before the Committee illustrate the interlocking objec-
tives of medical, social and pedagogical policing and define the series as the
system of police developed for the regulation of city populations. 6
The scale of offences, practices and institutions which was outlined in the
previous section is evident in the 1908 Report. Constables on the beat use
specified criteria to recognise and deal with offences under the Vagrancy
Acts of 1824 and 1838, the Metropolitan Police Act of 1839, the Town
 Nineteenth-Century English Obscenity Law 79

Police Causes Act of 1847 and various local acts and by-laws. Evidence on
this aspect of policing is given by Commissioners of the Metropolitan
Police, by the Chief Constables of Liverpool, Manchester, Hull and Dublin,
and by the Director of Public Prosecutions. Reference is also made to the
Obscene Publications Act of 1857 and the common law on obscene libel.
The Head Constable of Liverpool identifies the difference between routine
street policing practices and the statutory and common law provisions in
explaining how his officers police obscene and indecent materials. Where
indecent advertisements are found, instructions are given 'to the ordinary
constable on the street' on how to handle matters himself, exercising a not
insignificant measure of discretion. But the Head Constable then adds: 'Of
course, with regard to the Obscene Publications Act 1857, that is mostly
carried out by instructions from headquarters,and there are no more instruc-
tions issued to the police on the street on the subject, except that they would
report anything which seemed to them suspicious' (p. 640).
Drawing a distinction between routine street policing and the ceremony
of jury trial does not imply that the police acted entirely independently of
the law. The point - as the detail of the 1908 Report demonstrates - is that
police regulation of pornography had its relative autonomy and developed
its specific criteria and norms as appropriate to its circumstances. Hence the
pragmatic and incorrigible tests that the police had locally developed for
use by the constables, as instanced by Chief Inspector Drew:

I would like at this point to inform your Lordship's Committee, what in

the opinion of the police is the difference between a photograph of an
obscene nude person, and one which might be considered indecent,
although not obscene, and that is where the hair is clearly shown on the
private parts. (p. 436)

There is not room in this practical instruction to constables for the panoply
of possible exemptions and the finer evidential concerns of the jury trial.
Analogously, the Chief Constable of Manchester commented on his regu-
larly using the same stipendiary magistrate for the granting of summonses
under the 1857 Act: 'We always apply to him because you get a uniform
practice by applying to one man; on indecency publications, I always go to
the Stipendiary, so that you get a uniform practice' (p. 964). This evidences
the desirability of a predictable and 'uniform practice' at street level. By
contrast, the outcome of jury trial would be quite uncertain.
Other testimony points towards this 'high' end of the scale. Thus a Mr
Corfe, concerned citizen and author of letters to the papers, correspondent
with the Headmaster's Conference on the matter of their Memorial to the
80 On Pornography

Railway Companies concerning literature available through station book-

stalls, is of the opinion that 'English novels have become so indecent of late
years as to be even worse than the French ones' (p. 539). Indeed, three of
them- Three Weeks, Cynthia in the Wilderness and The Sands of Pleasure
-were 'about as bad as they can be' (p. 540). Still other testimonies range
between the concerns of street policing and high moral principle, as when
William Coote of the National Vigilance Society, freshly returned from
Paris - he had attended an International Conference on indecent literature,
books and pictures - expresses his anxiety over indecent exhibitions, dis-
plays of rubber goods in shop windows, 'living statuary' and an Anatomical
Museum in London's Oxford Street.
Most importantly, it is the police - through the Head Constable of
Liverpool - who draw attention to the variable character of the distinction
between serious works and popular pornography:

I think you must consider the circumstances of the case - the circum-
stances of how the thing is advertised, how it is distributed, and so on; for
instance, we had a case before His Majesty's Judge of Assize last year, a
case of some indecent photographs, and the learned counsel who was
defending the prisoner drew rather a red-herring across the scent by
alluding to the fact that he kept classical books like the Contes Drolatiques
of Balzac, butthe judge said: 'Balzac's works are classic, and they would
not be regarded as indecent.' I do not think he would have used that
expression if he had known that the particular edition of the Contes
Drolatiques, which was found there, were penny editions of certain of
those stories, mostly sold to dirty-minded little boys. In the same way,
there is the Decameron of Boccaccio; I think it would be very undesirable
if that were split up into penny editions, although regarded as a classic,
perhaps it may be all right. (p. 652)

The Head Constable's point is not that there is no distinction between the
classic and the pornographic. It is, rather, that this distinction is subordinate
to a more important consideration: the need to calculate the effects of
literary matter relative to the circumstances of its consumption by particular
social-moral categories of person. This policeman's working assumption-
as we have said, it anticipates literary theory by some half a century - is
that there is no inherent or fixed distinction between art and pornography.
The status of a piece of literature depends upon the aesthetic and ethical
abilities and disposition of its audiences or - in other words - on the actual
uses to which particular categories of person put it. This is precisely the
point made by many feminists today about the masculine use of erotic
 Nineteenth-Century English Obscenity Law 81

literature. The Head Constable gives an exemplary circumstantial definition

of what would count as obscene (the classics in penny part-editions circu-
lating in the streets) and what would not (the classics in whole editions in
the hands of competent readers).lt was along these variable and discretion-
ary boundaries that obscenity law adjusted itself to uses of pornography
which differed according to the uneven distribution of erotic interests and
cultural capacities.
The 1908 Report is an index of the state of relations between obscenity
law and serious literature at the end of the nineteenth century. The Commit-
tee's final recommendation makes explicit reference to the matter of such
literature:

A provision should also be inserted to exempt from the operations of the

Act any book of literary merit or any genuine work of Art. The Commit-
tee consider that it would be almost impossible to devise any definition
which would cover this exception. In their opinion the decision in such
cases should be left to the discretion of the Magistrate; but they believe
that, if a provision such as they recommend were inserted into the Act, a
Magistrate would be enabled to take into consideration all the circum-
stances of the case, and would be free from a supposed obligation merely
to decide upon the decency or the indecency of the particular literary or
artistic work brought to his notice. (p. 46)

This eschewing of definition and the wide margins allowed for circum-
stance and discretion confirm our account of police objectives as sensitive
to context. The provision was not in fact made law, nor was the recommen-
dation for a single consolidated statute with explicit definitions. Nonethe-
less, the Committee's move towards exemption for literary and artistic
merit points to the developments later in the twentieth century.
In the 1908 Report the problem of erotic literature occupies a marginal
position. No men of letters testified. If the Committee sought an exemption
for literature, it did the same for medical men and registered chemists acting
bona fide. It also left the task of recognising what was pornographic and
what was literary and artistic to the police, magistrates and justices. Given
their predominant pattern of distribution, Three Weeks, Cynthia in the
Wilderness and The Sands of Pleasure would tend to be unproblematically
recognised as part of that socially harmful and thus criminal merchandise
which also included gambling games, advertisements for contraceptives
and abortion devices, images in mutoscopes and French postcards, a verita-
ble canon of unseemly artefacts aimed at the moral harm and financial
exploitation of the vulnerable. Circumstantially located here, erotic writings
82 On Pornography

could scarcely call in their defence upon a general and unconditional right
of aesthetic self-expression, any more than rubber goods can do today.
While literature is not a focus of the 1908 Report, obscenity law too fails
to occupy the central ground. Or, more precisely, it does not have that
central ground - the government of the national population's moral and
physical welfare- entirely to itself. The Committee's recommendation that
its proposed consolidated statute on obscenity be enforceable by summary
jurisdiction rests on the assertion reiterated by witness after witness that the
common law provisions for dealing with obscene publications are inappro-
priate, and that the offender should be dealt with summarily rather than only
on indictment before a jury. There is an element here of the notion - dear to
enforcers - that cheap, fast and easy judgement is best. These reiterations
endorse a shift away from jury trial, for example in the specific recommen-
dation that punishments should be calculated to fall below the level at which
defendants could claim trial by jury.
In addition, other agencies of regulation of obscene publication make a
substantial appearance in the 1908 Report. Civic rather than legal, these
agencies and their presence draw attention to the ordering of commercial
and personal conduCt by means other than the criminalisation of pornogra-
phy. These extra-legal agencies signal that at the threshold of the twentieth
century a multi-institutional fabric regulated conduct across the cultural
field in which lotteries, abortificients, pornography and overindulgence in
mutoscopes could constitute a coherent social harm with which it was a
government's proper responsibility to deal.
Agencies other than law and police were also involved, formulating
routine instructions for staff having to deal with offending materials. The
Committee received evidence on the routine guidelines issued to postmas-
ters by the Postmaster-General on the handling of illegal materials. 7 Indeed,
the Postmaster-General envisaged an extension of his regulatory powers
and sought a new power to open suspect mail:

[I]t is very difficult to deal with either lotteries or indecent matter, so long
as the letters relating to them are put in sealed covers. There are very
stringent provisions in the Post Office Acts against opening or delaying
any letter, and every officer of the Post Office has to make a declaration
when he is appointed that he will not open or delay, or suffer to be opened
or delayed, contrary to his duty, any letter or thing sent by the post.
(p. 76)

At issue is the locus of authority to take regulatory action. At the time of the
1908 Report, the Postmaster-General had no authority of his own to open
 Nineteenth-Century English Obscenity Law 83

suspect items. Such authority was vested in the Home Secretary. Signs of
emerging boundary disputes are visible in the following exchange between
the Committee Chairman and the Solicitor to the Post Office:

Have you anything in your Post Office at all corresponding with the
Bureau of Chemistry in the Washington Post Office?- No, I do not think
we have. May I ask what the Bureau of Chemistry does?
The Bureau of Chemistry analyses a certain number of matters or
goods which are brought to their notice, and if under the report made to
the Post Office they appear not to come up to the qualifications that are
claimed for them by the advertisers the postmaster refuses to transmit
these goods at all. (pp. 82-3)

The Solicitor then confirms that the British Post Office has no machinery
comparable to the US Bureau of Chemistry. Asked whether he favoured the
establishment of some such agency, he replies: 'I should hardly have
thought it was necessary to have a Chemical Department to deal with these
questions. Such a thing would be primarily to help the Adulteration Acts'
(p. 86). An exchange of this kind testifies to the emergence of new agencies
from technical fields of knowledge in which criteria and tests are developed
for identifying harmful materials (here pharmaceuticals). These newagen-
cies construct their own boundaries of judgement - the Solicitor retreats to
the established legal arrangement when confronted by the prospect of a
'Chemical Department'. With the Post Office too, the fact of variable
judgement arises, Mr Muskett, legal adviser to the Commissioner of Police,
complaining that

the Post Office have expressed the view that a number of photographs of
nude women which came into their hands accidentally from a person who
is now being prosecuted, were not obscene, whereas in my judgement
they are exactly similar in every way to photographs which have always
been regarded by the police authorities as obscene, and which have
formed the subject of a large number of successful prosecutions. (p. 334)

This statement of the discrepancy between the pragmatic criteria and forms
of judgement deployed by two interested agencies underlines the heteroge-
neous character of the regulatory fabric of policing that was in place by the
end of the nineteenth century.
The regulation of obscene publication, it is clear, did not fall wholly
within the field of criminal law. On the contrary, this regulation was
84 On Pornography

diversified and marked by irregularities, boundary shifts, disputed loci of

authority. The 1908 Report demonstrates the continuing role of extra-legal
agencies - both professional enterprises and amateur consciences - in the
regulation of obscene publication. Newspapers, for instance, were con-
fronted with the issue since - like the national and international postal
service - they enhanced the circulation of obscene publications, rendering
regulation more difficult. Thus the newspaper proprietors and distributors
also functioned as regulators:

Personal representations have been made to the proprietors of more than

one newspaper and to Messrs Smith and Son and Wyman and Sons, the
great newsagents, in order to prevent them selling certain papers which
either admittedly deal with indecent matters, or have actually been con-
victed of doing so. Favourable replies have been received from both
those firms ... (p. 237)

The regulation of obscene publication here passes across the boundary

between public and private, into the domain of the Smiths and Wymans, the
Boots and the Mudies, that is, into the domain of self-regulating book and
newspaper wholesalers and retailers, and the circulating libraries.
Across this wide array of regulators and modes of regulating the problem
of pornography is generally defined in terms of a social harm to be handled
according to the then available medical-moral criteria. These, as we have
seen, were marked by an acute awareness of the circumstantial character of
this harm. The 1908 Report provides a picture of an English public whose
reading is organised differentially, within a complex network of social
regulation. It is not only professional administrators like Mr Byrne, Assist-
ant Undersecretary of State in the Home Department, whose reference to
the 'great newsagents' we have just quoted, who are active in this network.
More than once the Committee is informed of bodies such as the Headmas-
ters' Association and the Headmasters' Conference (pp. 191, 518-9), and
their intervention with the railway companies concerning the literature
available at railway bookstalls (these outlets were very largely owned by
W. H. Smith and Sons). While the headmasters were policing the booksell-
ers, the Billposters Association (p. 558), Watch Committees (p. 645), the
afore-mentioned National Vigilance Society (pp. 719 ff.), the Church of
England Men's Society (p. 735), the Ancient Society of Hibernians (p. 750)
and the ever-alert Paris Vigilance Society were all at work on obscene
publication and its channels of distribution and consumption.
So, in the late nineteenth century, the edifice of the common law was
being lapped by a rising tide of other regulatory agencies - private and
 Nineteenth-Century English Obscenity Law 85
public, religious and administrative, ethical and commercial. The fact that
censorship historians have, for their own ends, been transfixed by the grand
but rare ceremonies of the courtroom should not blind us to the equally
powerful but more organic and diverse regulatory currents flowing through
the capillaries of the social body. An inconspicuous reference in the 1908
Report thus signals a mode of regulating individual conduct contrasting
absolutely with public legal sanction. Giving evidence on behalf of the
National Anti-Gambling League, a Mr Hawke advised the Committee of his
idea for curbing illicit lotteries run through the post by allowing the Post-
master General

to refuse to deliver any open or closed communications which he has

reason to believe contain matters relating to lotteries contravening this
Act, and, unless proof to the contrary can be shown by the persons
interested, such communications shall be destroyed, and any lottery
remittance therein shall be retained for the benefit of the Rowland Hill
Memorial Benevolent Fund.
[Postmen] are always wanting money; it is a great institution, and, my
Lord Chairman, there is this to be said, that these poor postmen have to
go through the valley of temptation with regard to these sorts of things,
and if they were stimulated to put a stop to it, and if their fund for the
decrepit and old amongst them were benefitted, I hope it might do some
good. (pp.589-90)

Mr Hawke's regulatory superannuation scheme did not see the light of day.
But his image of poor postmen in 'the valley of temptation', acquiring
through the promise of benevolent funds the individual self-discipline that
makes a postal service possible, offers a polar opposite to the image of
judicial gravitas presiding at the ceremonial criminal trial where, in relation
to a certain publication, court and jury symbolically embody the community
pronouncing on the state of public morality.
Michel Foucault's History of Sexuality tells of the invasion of the law by
norms, and of the overlapping of the old juridical monarchy by

new methods of power whose operation is not ensured by right but by

technique, not by law but by normalization, not by punishment but
by control, methods that are employed on all levels and in forms that go
beyond the state and its apparatus. We have been engaged for centuries
in a type of society in which the juridical is increasingly incapable of
coding power, of serving as its system of representation.
(Foucault, 1979, pp. 88-9)
86 On Pornography

'Not by law but by normalization, not by punishment but by control': this

could be the slogan of those state and civic agencies whose active presence
is recorded in the 1908 Report: the police, the Post Office, the Bureau of
Chemistry, the newspapers and the newsagents, the booksellers and the
headmasters, the Billposters' Association and the National Vigilance Soci-
ety. Later, Foucault clarifies his proposition:

I do not mean to say that the law fades into the background or that the
institutions of justice tend to disappear, but rather that the law operates
more and more as a norm, and that the juridical institution is increasingly
incorporated into a continuum of apparatuses (medical, administrative,
and so on) whose functions are for the most part regulatory. (p. 144)

In its characteristic dialect, Foucault's aligning of the law with the 'con-
tinuum of apparatuses' invites us to find a historical instance in the spec-
trum of interlocking measures for dealing with what constituted- according
to governmental objectives and norms -the social problem of pornography.
In nineteenth-century England, obscenity law thus found itself in regulatory
partnership with a miscellany of other agencies. Given the multiple nature
of this regulatory field, to seek out a single great subject of power behind it
all - Victorian moralism, capital, patriarchy, the law, censorship - is to
create and to pursue a shadow, a chimera. It is to risk describing nothing,
when all the time the task should be to describe the actual agents which
organised and managed the pornographic field.

HISTORICISING OBSCENITY LAW

The theme culled from Foucault recalls the matter of how published ob-
scenity was brought within the common law sphere in the first place.
Literary histories of obscenity law - the work of what we have termed
'censorship historians' - identify the person who creates and the person
who is prosecuted. This identification is manifest in the attachment of post-
Romantic criticism to the figure of the transgressive author (or text), said to
embody the whole impetus of human development against the repressive
powers of law and state. This identification is so profoundly established that
these literary histories do not pause to digest the fact that the bulk of
obscenity prosecutions have been of printers, publishers and booksellers,
not of writers.
It was thus as a printer and bookseller, not as a writer, that an individual
was first convicted of obscene publication. In Chapter 2 we noted that in
 Nineteenth-Century English Obscenity Law 87

1727, with Rex v. Curl!, the court of King's Bench created the offence of
obscene libel, conceptualised as a disturbing of the King's peace by virtue
of an obscene publication which does harm to public morality. 8 In 1724, the
London printer, bookseller, pamphleteer, journalist, publicist, employer of
hacks, pirate and pornographer Edmund Curll was charged in relation to the
publication of Venus in the Cloister; or, the Nun in her Smock, an English
translation of Jean Barrin's Venus dans le cloftre, together with certain
other works. For the first time, obscene publication appeared within the
purview of the common law, entering the criminal justice system and
thereby gaining a new social generality as the object of governmental
responsibility. With the sentencing of Curll in 1727, obscene publication
gained legal recognition as a danger which, left unchecked by the custodial
and legal powers of the sovereign, could morally harm the population at
large. In effect, the judges in Curll's case adopted a new disposition of
public morality, transferring a specific form of immorality froni. sin to crime
and shifting its control from religious to legal regulation.
This shift marked a significant mutation in the existing division of juris-
diction between the temporal or common law courts and the spiritual or
ecclesiastical courts which, hitherto, had dealt with matters pertaining to
personal morality and sex (hence their popular appellation as the Bawdy
Courts). 9 The spiritual courts had traditionally carried the responsibility for
dealing with 'personal' offences pro custodia morum of the community and
pro salute animae of the offender, that is, for the sake of reforming the
sinner. The judges did not slip obscene publication across this jurisdictional
boundary without a deal of debate about the existing demarcation of com-
petence between the different courts and about the indications and counter-
indications of such precedents as were to hand, notably Rex v. Sir Charles
Sedley 1663 and Regina v. Read 1707. A solid tussle was conducted within
the terms of a specific common law procedure - the construction, extension
and application of precedent. This is just one sign that the judges' action
was anything but automatic and driven by Puritan morality or by a reflex
repression of sexual expressivity.
Curll' s defence to the charge ran within established boundaries and
rested, one would think, on a solid precedent in Read. In 1707 the King's
Bench had quashed a conviction on the grounds that a written publication
which did not defame some actual person was not a criminal matter. As
Curll's counsel said of Read:

[T]here was an information for a libel in writing an obscene book called

The Fifteen Plagues of a Maidenhead, and after conviction it was moved
in arrest of judgement that this was not punishable in the Temporal
88 On Pornography

Courts; and the opinion of Chief Justice Holt was so strong with the
objection, that the prosecutor never thought fit to stir it again.

(Rex v. Curll, pp. 849-50)

Yet this defence failed against an evidently successful analogy drawn by the
Attorney General: just as 'particular acts of fornication are not punishable
in the Temporal Courts, and bawdy houses are' (p. 850), so the action of
obscene publication - if it 'tends to disturb the civil order of society' or
reflect upon morality - should be considered by the court in the same terms
as the running of a bawdy house.
In this unforeseen reorganisation of the institutions of moral regulation,
the common law courts acquired a new responsibility: regulation of the
field of obscene publication. In its early modem configuration, this field
was organised around an equally unforeseen yet potent liaison between
certain literate products of a confessional practice concerned with instilling
an ever more detailed sense of the erotic and the sinful, and a commercial
book trade beginning to exploit that same developing erotic sensitivity but
for ends quite other than grace. The once specialist genre of libertine anti-
clerical erotica was thereby redirected to a new audience, as English trans-
lation and publication established new circulations for works such as Venus
dans le cloftre. In Chapter 2, in considering the question of this new
audience, we thus suggested that what pushed Curll's publication across the
threshold into the domain of criminal law was the formation of a new and
less specialised public with a disposition for pornography in English.
This particular expansion of government and criminal law into the area of
public morality did not involve an abstract specification of the existence of
a public with a propensity for corruption. Without the definite means of
becoming corrupt, in other words without the communications technology
of the book and without the dissemination of a particular cultural compe-
tence - print literacy - a public which might be corrupted by obscene
publications could not actually exist. Hence the significance of one judge's
observation that '[t]he spiritual Courts punish only personal spiritual
defamation by words; if it is reduced to writing, it is a temporal offence'
(p. 850). More pointed still is the contrast drawn by Justice Reynolds
between Sedley, where Sir Charles had 'only exposed himself to the people
then present, who might choose whether they would look upon him or not',
and the action of Curll, whose 'book goes all over the kingdom' (p. 851).
The notion of the new distributional force of print, and the judges' suspicion
that print exercises a certain type of direct impact upon its readers, swings
the case against Curll. This had not been the decision in Read, and the
 Nineteenth-Century English Obscenity Law 89
divergence of these two decisions at common law, separated by only twenty
years, says something of the instability of the pornographic field from the
very start. The court in Curl/ thus set itself to weigh up whether a publica-
tion of obscene literature, the distribution and reading of Venus in the
Cloister, could disturb the King's peace as surely as the actions of Sedley,
friend of Rochester, had been found to do in 1663. In the earlier case, along
with the public display of nakedness on the balcony, the defendant had, as
Chief Justice Fortescue remarked in Curl/, exercised a physical force in
throwing out bottles and pis sing down upon the people's heads.
Aside from the telling contrast with our own times when, in the Williams
Report (1979), books fall by their essential nature as 'writing' into the realm
of free 'choice' whereas photographs are excluded on the grounds of the
coercive immediacy of their impact, what is the historical and theoretical
interest of Curll's case for subsequent law on obscenity? 10 The judges in
Curll realised a complex piece of lawmaking which - as the offence of
obscene libel - was to endure in English criminal law for 232 years, until
the Obscene Publications Act of 1959. The creation of this new offence and
the judicial initiative to use the criminal law for the moral government of
the kingdom were contingent on an unpredictable conjunction of legal and
cultural factors: the Sedley precedent whereby the common law declared
itself competent- as custos morum of all the king's subjects- to indict on
the grounds of a subversion of public morals; the rise of the distribution of
printed works and a rapid expansion of the cultural capacity - discursive
literacy - needed to consume them; the emergence of a less specialist
interest in erotic writings and the formation of a system of supply, for
instance by a pornographer, printer and bookseller such as Curll, of a
market providing for this new 'personal' interest.
It is in this conjunction of otherwise unrelated factors - legal, govern-
mental, cultural, technological and commercial- that the contingency of the
early modem pornographic field is displayed. Set against this background
of unplanned circumstances, the attempt to account for the first emergence
of the crime of obscene publication in terms of some general movement of
consciousness of which the law was the pliant instrument - typically an
access of 'Puritan' repressiveness - promises only a loss of historical
specificity and a reduced descriptive capacity. Certainly, an expansion of
the sphere of government occurred through the mechanism of the criminal
law. But this unanticipated reorganisation of the institutions regulating
public morality resulted from a characteristic piece of common law innova-
tion, building up from gritty example and particularity of circumstance. The
court was confronted by the possibility of a crime involving a disturbance
of the peace where there was no use of physical force and a libel where no
90 On Pornography

one was libelled. The question of how such an act could have become
intelligible as a crime, as it evidently did with Curl!, calls for analysis in
terms of quite local circumstances, not grand philosophical schemes.
In Curll's case, a printed and published writing was recognised as consti-
tuting an obscene libel and made the object of a criminal sanction on the
grounds that - left unchecked - such a publication would harm public
morality and disturb the social balance by libelling the honour of the king
through an exposure of his subjects to the imperious force of printed
obscenity. By the time of the Obscene Publications Act of 1857 and Hicklin
in 1868, things are very different. By then, a work counted as obscene is
treated as a toxic substance having 'a tendency ... to deprave and corrupt
those whose minds are open to such immoral influences, and into whose
hands a publications of this sort may fall'. If the publication is dangerous
enough to be deemed a social risk and thus made subject to preventive legal
regulatory measures, it is no longer as an action liable to disturb the king's
peace. Rather, it has become a dangerous substance, a commodity capable
of inducing the user who comes from what is deemed a category of vulner-
able and non-competent persons to deviate from known norms of moral and
physical health. What nineteenth-century obscenity law targetted as an
essential object of governmental responsibility was no longer an act of
sedition endangering the social balance, but a dangerous poison inducing
moral and medical harm. To underscore such transformations is to break
with the received pattern of historiography that has been imposed on Eng-
lish obscenity law. We have in mind accounts such as St John-Stevas
(1956), Hyde (1964), Rolph (1969), Thomas (1969) and Robertson (1979).
These are unitary narratives which construct a history of the legal relations
of erotic writing in terms of a single trans-historical struggle between
repressive external controls - censorship, obscenity law, police- and an
essential subjectivity which seeks individual expression in writing the truth
about sex.
What is the problem with such accounts? It is not just that they write the
history backwards from the present as if a single logic, a single dark and
shining path led from Ezekiel to D. H. Lawrence (Robertson, 1979) or from
ancient Greece to the First Amendment and Arthur Schlesigner Jr (Widmer,
1970). More importantly, the received historiography does no justice to the
substantive changes in the social organisation of subjectivity. The medicalised
morality and moralised medicine which created and so minutely managed
the nineteenth-century sexual personality - and thus directly informed the
obscenity law of that time and cultural milieu - register a high degree of
historical particularity. In our present study, historical transformations of
subjectivity are taken as a necessary starting point for any attempt to put the
 Nineteenth-Century English Obscenity Law 91

record straight concerning the objectives and norms of obscenity law. The
difference should be clear between a history which recognises the histori-
cally distinctive but impermanent arrangement of sexual, moral, medical
and legal attributes in nineteenth-century England and one - the received
historiography of the censorship historians - that assumes a timeless sexual
subject upon which, except at rare moments of emancipation, more or less
the same censorious law eternally impinges in more or less the same
repressive manner. No doubt the notion of a transhistorical sexuality is
convenient, providing both origin and destiny for the traditional history of
erotic writing, whether for the author behind the work, the reader in front of
it or the historian wanting to write his or her single story of repression.
By contrast, we have emphasised the historical and cultural differences
between a crime of obscene publication defined within a series comprising
sin, sedition, disturbance of the king's peace, print technology and a crime
of obscene publication defined within a series comprising moral offence,
medical harm, abortificients, lotteries, the Post Office, unregulated poisons
and mutoscopes allowing universal access. In foregrounding the fact of
historical difference, we directly confront those two traditional periodisations
of English obscenity law which tie the emergence of that law either to the
alleged excess of puritan moral conscientiousness or to the supposedly
overweaning power of Victorian moralism. In each case, the received
historiography underestimates the technical complexity and historical par-
ticularity of the legal-cultural arrangements, just as it underestimates the
possibility - if, that is, it even suspects it- that western sexuality is less the
locus of an essential human truth than a specialised cultural artefact into
which so much work has gone. Not the least important element of this work
has been a remarkable alteration in the relations between literature and sex.
It is to this theme - a quite unforeseen transformation of the concerns and
content of aesthetic literature and the problems which this transformation
posed for obscenity law - that we now tum.
4 Literary Erotics
Nothing is more obdurate to artistic treatment than the carnal, but it has
to be got in, I'm sure: everything has to be got in ...

E. M. Forster, 1983 [1920]

TENDER IMAGINATIONS

In the late nineteenth and early twentieth centuries a significant devel-

opment occurred, one which was unforeseen in earlier legislation and
policing. Serious literary works began to come under the eye of police
employing routine tests for obscenity, and on occasion were the cause for
obscenity proceedings in the courts. 1 How is this development to be under-
stood? When, how and to what extent did serious literature enter the field of
discourses concerned with sex, in an event which signals a new orientation
of literary techniques and abilities?
We can begin by separating out two relevant instances. In the nineteenth
century, the educative novel and the erotic novel were defined through
different channels of distribution which were maintained, partly, by law.
The genre of 'curious' or perverse pornography was confined to a tolerated
specialist zone, which added an erotic space, a 'habitus' of secrecy, to the
definition of a true (that is, hidden) self identified with the activity of
reading erotica. At that time, biblio-erotic techniques were set apart from
the educative fictions of the cultivated classes. While this was the case, the
law on obscenity would remain largely indifferent to questions of literary
merit. The conditions for significant conflict to occur between artistic value
and the criminal harms associated with obscenity did not yet exist, a fact
reflected in nineteenth-century law's untroubled distinction between por-
nography and literature. Of course, as noted in the preceding chapter, police
routinely tested the obscenity of works normally viewed as literature but
republished in editions designed as pornography or collected in erotic
anthologies aimed at the street market. This, however, neither collapsed the
distinction between literature and pornography nor undermined the medi-
cal-legal policing of obscenity as a social pathology. Different types of
publication were regulated and channelled according to a working know-
ledge of audiences that was maintained into the twentieth century. In
general, obscene publications were easily recognisable as a particular form

92
 Literary Erotics 93

and use of print literacy - and not just for the law - by the matter they
contained, their mode of distribution and their sites of sale. 2
The educative novel was not a target in nineteenth-century campaigns
against obscenity. It is equally important to note that serious literary writ-
ing, including criticism, was not among the array of 'infra-legal' disciplines
which guided the law in administering that area. The limited political
opposition to Lord Campbell's Bill which was voiced in Parliament was not
matched by widescale criticisms defending literary projects and rights, of
the sort which would become familiar in connection with twentieth-century
obscenity law. Generally, novelists, editors and critics felt no need to
mobilise opinion in order to protect their craft against supposed encroach-
ments by obscenity law. On the contrary, the literary establishment shared
the concerns of the legislature.
Consider, in this regard, the letter written by Charles Dickens to Wilkie
Collins in 1867, concerning certain scenes in a novel which had become
embroiled in controversy, Griffith Gaunt, or Jealousy, written by Charles
Reade (who had initiated suits against critics attacking his novel's treatment
of adultery, bigamy and seduction). With a clear sense of the difference
between the serious novel and 'Holywell Street literature' or pornography,
Dickens defends Reade's work against critics who have treated it as no
different from the latter. However, he is also aware that there are different
kinds of audience and distribution, and in this regard Dickens's views
accord with those of the police. What is to be made of a book depends in
part on the capacities, dispositions and habits of those who read it and the
uses to which they may put it. As the editor of a widely circulating periodi-
cal, Dickens recognises that if literature can improve it can also damage its
readers:

MY DEAR WILKIE, -I have read Charles Reade's book, and here follows my
state of mind - as a witness - respecting it.
I have read it with strongest interest and admiration. I regard it as the
work of a highly accomplished writer and a good man; a writer with a
brilliant fancy and a graceful and tender imagination. I could name no
other living writer who could, in my opinion, write such a story nearly so
well. As regards a so-called critic who should decry such a book as
Holywell Street literature, and the like, I should have merely to say of
him that I could desire no stronger proof of his incapacity in, and his
unfitness for, the post to which he has elected himself.
Cross-examined, I should feel myself in danger of being put on unsafe
ground, and should try to set my wits against the cross-examiner, to keep
well off it. But if I were reminded (as I probably should be, supposing the
94 On Pornography

evidence to be allowed at all) that I was the Editor of a periodical of large

circulation in which the Plaintiff himself had written, and if I had [had]
read to me in court those passages about Gaunt's going up to his wife's
bed drunk and that last child's being conceived, and was asked whether,
as Editor, I would have passed those passages, whether written by the
Plaintiff or anybody else, I should be obliged to reply No. Asked why? I
should say that what was pure to an artist might be impurely suggestive
to inferior minds (of which there must necessarily be many among a large
mass of readers), and that I should have called the writer's attention to the
likelihood of those passages being perverted in such quarters.

(David Paroissien (ed.) 1985, p. 358, footnotes omitted)

Like the Chief Constable of Liverpool, Dickens was attuned to the fact of
differences in the social distribution of ethical culture and hence to the
circumstantial character of literary value. In a case where erotic passages in
a serious novel might prove too strong a medicine for the ethical constitu-
tion of a popular audience, Dickens accepts without hesitation the role of
aesthetic policeman. The writer and publisher of educative literature, in
contrast to the pornographer, must attempt to communicate edifying senti-
ments and conducts. The project of a writer such as Dickens could be said
to help manage 'sexuality' only if we understand by this term a way of
cultivating moral norms and manners which displays no interest in setting
up sexual acts or erotic pleasures as containing an ultimate truth, central to
the recovery and expression of personal identity. 3
By the 1920s, the relation of some serious literature to obscenity law had
become sensitised and vexed, not only for the literati but also for those
administering the law. The regulation of qbscenity- including the relation
of its customary object, pornography, to their own enterprise - had now
appeared on the agenda of advanced literary intellectuals. They responded
in various ways. E. M. Forster was sufficiently interested in accommoda-
ting erotic writing in the novel to compose his study of homosexuality,
Maurice, in 1913-4, although it was not published until after his death in
1970. In 1920 he wrote to Siegfried Sassoon the avowal, cited at the head
of this chapter, to achieve an artistic treatment of the carnal. James Joyce
recorded that in Ulysses, a work attracting legal attention in England
(Robertson, 1979, pp. 35, 38) and in the USA where its publication was
permitted in 1934 in US v. Ulysses, he was experimenting with 'the grossly
masturbatory prose of "dirty" books' (Charney, 1981, p. 51). D. H. Law-
rence, of course, wrote many erotic works and apologias for them and, in
 Literary Erotics 95

1915, a Bow Street magistrate ordered the destruction of one thousand

copies of The Rainbow while in 1929 several of his pictures were seized by
police at an exhibition. Lady Chatterley's Lover opened its episode with the
policing of pornography in 1928 as soon as it was written, Lawrence
avoiding prosecution by having it printed in Italy and mailed to private
subscribers in England. This book circulated in the same manner as porno-
graphy and was a minor catalyst to the pornographic trade since, without
copyright protection, it was open to piracy. A certain set of circumstances
allowed a writer such as Lawrence to occupy an ambiguous status: on the
one hand he could produce works that were likely to be prosecuted for
obscenity; on the other, he could figure as a progressive author entitled to
comment ethically on social problems including the soundness of obscenity
law itself. The mid-nineteenth century had no equivalent to this contradic-
tory persona. In order to understand what made such as figure possible, we
need to reconstruct the peculiar conditions under which literary discourse
and literary careers could become marked by so intense an interest in sex.
Of course it was not that literature had never spoken of sex before. As a
theme, sex is no doubt continuous from the classical period onwards. This
does not mean, however, that the sex being spoken of and the manner in
which the speaking was done (by whom, to whom, and for what purposes)
remained constant. In Chapter 2 we outlined the emergence of a personal
confessional sexuality, resulting from the deployment of religious tech-
niques of erotic self-interrogation in early modem Europe. Paul Veyne has
argued that, as the inheritors and masters of such techniques, modem
writers address their sexuality and their audience in a manner quite unlike
their classical forebears:

The problem of individualism in literature gets posed more often in terms

of pragmatics than content. Romanticism did not discover unknown
continents of the human soul. It won the right to talk about oneself for no
other reason than to express, in one's own name, truths that may have
already been known, tossing into the balance the weight of personal
testimony, even if it was repetitive. All of which presupposes a civilisa-
tion where every soul is held to be interesting, if it is undisguised. Greek
civilization, however, was as yet unaware of the anxiety of confession,
doubt, or self-exploration. Greek souls did not publicise their turmoils. If
error or faults were to be published as something important, they had to
stop being something negative and become, like sin, integral parts of the
human condition.

(Veyne, 1988,p. 170)

96 On Pornography

During the Romantic period it became possible for autliors and readers to
orient themselves around the personal experience of sex. This was due to
the emergence of an ethical culture that created individuals who routinely
related to their 'selves' by problematising their sex. As a profane relay for
this interrogation-incitement of the flesh, pornographic writing, we have
argued, maintained an ambivalent and fugitive existence during the eight-
eenth and nineteenth centuries. Having emerged when the techniques of
auto-erotic inwardness were unexpectedly caught up in a new technology of
mass communication, pornographic writing was initially balanced precari-
ously on the cusp of private ethical and public legal regulation and was
bathed in the strange half-light where the sciences of pathological sexuality
embraced a literature that intensifies sexuality by pathologising it. So when,
at the end of the nineteenth century, serious literature began to experiment
with the techniques of pornographic writing and to dice with obscenity law,
it opened itself to the whole unstable play of forces that formed the porno-
graphic field.
Serious sexual literature emerged thanks not to the independent experi-
ence and vision of individual authors, but to a complex interaction with an
existing field of sexual techniques, problematisations and disciplines which
already had a role in constructing sexualities. In the late nineteenth and
early twentieth centuries, literature came to play a distinct part of its own in
organising sexuality. This was not because it reflected the intrinsic nature of
sexuality more accurately than other discourses had been able to do. It was
simply that a certain kind of literature provided the techniques through
which a particular group of writers and readers would be able to transform
-aesthetically- a certain deployment of sexuality. In this way, early in the
twentieth century, sexualised literature became the locus and the medium
for a highly specialised use of sex. For a little band equipped with the
cultural capacity to make them into serious ethical endeavours, erotic writ-
ing and reading became the instruments for a novel kind of work on the self.
What made this new role of literature possible? Two general factors were
in play. First, as we suggested in Chapter 2, an aesthetic mode of self-
fashioning - derived from the Romantic period and sustained thereafter by
a highly educated minority- converged with various disciplinary knowledges
and problematisations of sex. Second, in a particular development of this
aesthetic interest, the serious novel took over techniques of erotic writing,
especially from pornography, revalorising these as a true (because secret)
means of shaping and knowing the self.
From these factors emerged a re-organisation of literary interest, identi-
fiable in the Lawrentian project to realise and publish the truth of sex. We
shall examine these general factors in more detail below, but let us note for
 Literary Erotics 97

the moment that this literary incursion into the territory of explicit sexual
representations was powerful enough to blur the existing boundary between
social genres. The distinction between pornography and serious literature
observed by the law was no longer respected by a hybrid form of the novel
which had become both literary and pornographic. This shift created a new
uncertainty in the regulation of pornography. Pornographic elements began
to surface in the educative novel, that much more widely disseminated
social relay of norms of conduct and sentiment, which now started teaching
its readers the need to experience and express erotic feeling. It was this
literary intensification of the erotic and perverse which posed problems for
legal regulation. Advocates of serious works about sex claimed that they
should not be subject to legal interference (cf. 'The Revaluation of Obsce-
nity', in Ellis, 1931, pp. 103--42). At the same time, many of them agreed
that pornography, the very form from which they were now borrowing, was
harmful and should be legally controlled (see, for example, Lawrence,
1936, p. 175 and the reviews by V. S. Pritchett and E. M. Forster reprinted
in Draper, ed., 1970, pp. 287-8, 508-9).
The nascent interest of the literati in using the educative novel as a means
of forming sexual identity depended on their social access to a special
practice of reading. This was the practice, developed by the Romantics, in
which literature is used to intensify and reconcile the antagonism between
the reader's sensual and moral sides, in pursuit of a commodious, harmo-
nised and stylised self. However, this practice and interest were anything
but universal. Once on the market, serious erotica was thus available to
readers not interested or schooled in applying such a method. The same text
might therefore have an aesthetic use for some and a more plainly porno-
graphic use for others. To investigate these issues further, we can consider
two very different contributions on the problem of obscenity which were
made in the 1920s to a Faber and Faber pamphlet series, The Criterion
Miscellany. The inclusion of these texts on obscenity in the literary project
of the Criterion is itself a sign of the interest which literary publishers and
writers had developed in this problem by this time.
D. H. Lawrence's 'Pornography and Obscenity' (first published in 1929)
was to become a definitive statement for proponents of liberal and libertar-
ian positions on obscenity, law and literature. 4 Implicit in the essay is the
new aestheticising of sex: individuals must allow themselves to be more
open to the profound meanings of sex - at once sensuous and spiritual -
which conventional morality suppresses. Alongside this aesthetic schema
stands the accompanying historical narrative. Like the censorship histori-
ans, Lawrence imagines a period before Puritan repression when literature
expressed sexual experience in a spontaneous unity of feeling and thought.
98 On Pornography

In accordance with the invariable schema of Romantic historicism, he

makes the recovery of this unity a fundamental goal.
Of course, once the literati began to experiment in the serious novel with
the techniques of auto-erotic writing and reading borrowed from pornogra-
phy, it became necessary for them to distinguish their own interests from
the common uses of erotica. To this end, they used the aesthetic dialectic as
a means of problematising their own sexuality. This is evident in Law-
rence's apologia for serious sexual literature. In his distinction between true
creative literature and pornography, we see the aesthetic and medical con-
ceptions of sex combine. In sexual writing worthy of the name of literature,
it is said, we find a natural, fresh openness about sex, whereas pornography
is the distortion of sex brought about by the tyranny of moral norms over
experience (p. 177). Pornography is the dissociation of ethical being into
mental consciousness on the one hand, and into sentimental fantasy on the
other, in which 'there is no real object, there is only subject' (p. 180). This
non-dialectical exploitation of sex is 'underworld, it doesn't come into the
open' (p. 175). In that statement which was to become axiomatic for literary
criticism, pornography is 'the attempt to insult sex, to do dirt on it' (p. 175)
and hence 'do dirt' on life. Pornography is said to be a morbid obsession
with the body and its organs and functions, in which all moral and spiritual
understanding of sexuality is extinguished. At the same time, it is an
obsessive moralisation of bodily sensuality in which the latter is denied all
normal expression and assumes perverse forms. In Lawrence's idiosyn-
cratic appropriation of psychoanalysis, pornography is a form of regression
at once physical and psychical, in which 'the sex flow and the excrement
flow' become identical and 'the profound controlling instincts collapse' (p.
176). This inner collapse is the 'dirty little secret' to which pornography
panders by providing 'an invariable stimulant to the vice of self-abuse,
onanism, masturbation, call it what you will ... [which] is the one thor-
oughly secret act of the human being' (pp. 177-8).
Lawrence is as convinced as any nineteenth-century medical or legal
authority that pornography is harmful to physical and moral health. Accord-
ing to him, the established powers of law, literature and the press, the 'grey
ones left over from the nineteenth century' (p. 185), collude with 'the vast
mob of the general public' to create 'perpetual censorship of anything that
would militate against the lie of purity and the dirty little secret' (p. 186).
However, any notion that might be drawn from this that there was formal
censorship of literature in this period is incorrect, as we shall see from the
second Criterion text we consider. Rather, this type of statement belongs to
a strategy of saying that suppression and censorship exist, in order to justify
a project which promises to bring liberation by truly expressing sexuality.
 Literary Erotics 99

For Lawrence, acceptance of the literary realisation of sex is the path

towards this freedom. The 'problem' of obscenity and pornography has a
utopian solution: the dialectic of mind and body, consciousness and being,
manifested in sex, will diffuse itself and eventually allow the complete
development of self and human culture. We return to this solution shortly.
Our other essayist is the Right Honourable the Viscount Brentford, Sir
William Joynson Hicks. For those working in aesthetic terms, his 'Do We
Need a Censor?', published in 1929 soon after his departure from the office
of Home Secretary, will doubtless be dismissed as a bureaucratic justifica-
tion for a philistine policy repressing artistic freedom (see, for instance,
Edward D. McDonald's 'Introduction' in Lawrence, 1936, p. xvi). But we
shall read the text positively as a summary of practice followed in a
complex transitional period in the policing of pornography.
Brentford defends the existing procedures by which pornography is regu-
lated as a harmful substance. Those 'whose minds are open to immoral
influence' (Brentford, 1929, p. 11) are now mainly the young, although
harms to adults are implied, for instance in connection with the international
postal traffic in obscene materials:

Those who object to all forms of censorship cannot, I imagine, realise the
extent of the traffic which goes on in filthy literature, and still more filthy
photographs. In the course of my administration at the Home Office I had
to place an embargo on pictures coming into this country of such a
character that, whatever artistic merit they might possess, I am quite sure
that not one hundred people in the country would be prepared to support
or even excuse them. I know, from the examination of letters passing to
certain shops on the continent, the nature of the traffic, the kind of person
who indulges in it, and the harm that is done in consequence: is the
Executive to allow this evil to go unchecked? (p. 12)

This 'executive' concern was with policing readily identifiable obscene and
indecent materials and their various distributions, including importation of
printed matter. 5 Despite claims to the contrary, a vendetta against serious
literature was not the order of the day. At the same time, however, Brentford
records a new problem for obscenity regulation, which is evident in reac-
tions to legal proceedings against a small number of books and in the charge
that he had tried 'to establish a dictatorship in the realm of literature and
morals' and to ban works which in the world of letters were held to have
literary merit (p. 5). He acknowledges that a case has been constructed,
through the press, literary circles and other enterprises such as the World
League for Sexual Reform (~omprising sexologists, psychologists, authors
100 On Pornography

and public figures), against the policing of literary and artistic works relat-
ing to sexuality. Significantly, he concedes that serious works about sex
may have artistic merit. This, however, does not solve the problem, as he
notes with reference to an unnamed literary work:

The merits of the book may be as great as its admirers claim - and I
confess I found it to contain much that, from a purely literary standpoint,
excited admiration- but surely its merits were not strictly material to the
issue; it was the demerits of the book which I was asked by the publishers
to consider- not whether it possessed something of greatness, but whether
it would tend to corrupt and deprave the public mind. (p. 19)

The object of 'corrupt and deprave', the 'public mind', is less specific than
earlier legal references to vulnerable classes of individuals. But it makes the
point that literary works on sex, however well-intentioned, can and do have
a circulation and use that is not just literary. As feminists would later argue,
literature's merit is rendered 'immaterial' by what appears, on balance, to
be its demerit. Placing restrictions on a certain artistic style of sexual
writing- specifically, on its public circulation- is simply seen as the lesser
of two evils, compared with tolerating a known medical and moral harm.
This ranking of criteria is to be reversed by the time of the Obscene
Publications Act of 1959 (see Chapter 5 below). By then, the spread of
aesthetic education could perhaps be counted on to have produced a com-
paratively generalised ability among readers to recognise literary merit and
in some measure to oversee their own reading of sexual fiction. In the first
decades of our century, however, it was not at all evident that an aesthetic
schooling of the sensibility had provided for the population at large a viable
alternative to the medical-legal regulation of pornography and obscenity.6
It is noteworthy that Brentford does not argue to introduce new obscenity
laws or strengthen existing ones. He holds that the law 'in its application to
frankly pornographic matter has well served its purpose' (p. 11). He de-
fends the Home Secretary's powers to violate the confidentiality of His
Majesty's mail, by referring to the scale of the traffic in 'vicious publica-
tions' imported through the post (pp. 12-13). He supports the status quo, in
which there is no official vetting of books on publication. Questionable
books are sent to the Home Office with a complaint from the public that
they are obscene, or with a publisher's request for advice whether there are
grounds for thinking the publication would constitute, or has constituted, an
infringement of the law (p. 15). Brentford states that there is a censorship of
stage plays, under the separate jurisdiction of the Lord Chamberlain (p. 8),
and a voluntary censorship of films, but that 'there is in England no
 Literary Erotics 101

censorship of books' in the sense of 'a scrutiny by some central authority of

the whole output' in order to impose some standard (p. 9). He maintains that
juridical regulation is generally less appropriate than executive consultation
and self-regulation within the book trade- a task, we can recall, that figures
like Dickens needed no persuasion to undertake. And, against Lawrence's
painting of him as a literary censor, Brentford argues that to create a censor
of books by a government department would be 'most undesirable' (p. 10).
We see, then, that in the regulatory field there existed, on the one
hand, a range of police measures including powers of search and seizure,
summary application of tests for obscenity, interception of mail, customs
control and cooperation with other governments to control the traffic in
pornography. On the other hand, in relation to works with a degree of
serious artistic intent, there was advice on publication, publishers' self-
regulation, the discretion of booksellers, the possibility of complaint, a
degree of tolerance and, very rarely, prosecution for obscenity. Of course,
some serious artistic and literary works were seized by police, but their
regulation still generally involved various players. The Rainbow, for exam-
ple, was the cause of a police summons which its publishers did not oppose
(The Times, 15 November 1915, in Draper (1970), pp. 102-3). We are thus
reminded that the regulation of pornography and obscenity involved a mix
of agencies, procedures and jurisdictions - administrative, judicial, com-
mercial and ethical - which were not bound together by any single force
such as a Puritanical will to repress sex and impede enlightenment, but
which directed the distribution of various types of publication to different
audiences according to limited goals and imperatives. Within this context,
the tensions between serious literature and obscenity law in the late nine-
teenth and early twentieth centuries, where they occurred, do not signify
that the former was at last winning through to show the truth of sex. Rather,
they indicate that educative literature was branching out into an aesthetic
use of erotica, appropriating elements of pornography for consumption by
a coterie which formed only an insignificant fraction within the legal,
administrative and still partly medical typology of audiences.
Our discussion of these two Criterion pieces shows how anachronistic is
the assumption that literary aesthetics was a neutral and universal know-
ledge of the truth of sex which could have solved the problem of pornogra-
phy (as an effect caused by the repression of sex) if only the law had dared
open its eyes. Literary erotics comprised a specific and limited distribution
of literate techniques and ethical culture. It was the method used by the
members of a coterie to read themselves into distinction. Lawrence could
afford himself the luxury of condemning as 'pornographic' the majority of
English writings from Jane Eyre to 'some quite popular English hymns'
102 On Pornography

(1936, p. 174)- works hardly like to trouble constables on their beat. But
even if legal administrators had wished to use the criterion promoted by
Lawrence - the aestheticising of sex - to decide the regulation of porno-
graphy, they could not have done so effectively, for it was far too special-
ised to gain any general purchase.

HIDE AND SEEK

By the early twentieth century, then, new relations were forming between
literature, pornography and the sexual 'sciences'. The introduction of the
erotic and perverse into the educative novel allowed certain individuals and
groups to carry out aesthetic self-culture through the cultivation of a sexu-
ality that - or so they told themselves - was repressed, fugitive and the key
to personal identity. Providing a new facility to eroticise body and con-
science, and forming a circuit between the sexologies and pornography,
serious sexual literature comprised an optional- primarily ethical- mecha-
nism for organising sexual identity even as it also constituted a new object
of policing, since it could be harmful for some readers.
These complexities provide evidence for the argument that serious sexual
literature has had no essential function such as representing the truth of sex,
but has played an uneven and contingent role in forming and regulating
sexualities. This argument may be pursued by considering in greater detail
the two sets of conditions which allowed literary and sexual organisations
of the self to converge: a particular interaction between literature and
sexology, and a literary appropriation of pornography.
In relation to the first of these, a major precondition of the sexualisation
of serious literature was the success of sexual medicine in making health,
understood in sexual terms, central to the new norms of management of
personal life. We recall from Foucault (1979, pp. 65-6) that the nineteenth-
century medical organisation of sexuality postulated that sex was an 'inex-
haustible and polymorphous' causal power and that there was 'a latency
intrinsic to sexuality'. Given the former, sex could be and was entertained
as the cause of almost any species of physical and moral problem. Sexual
causes and effects were thought to manifest fundamental processes which
could be charted through the temporal stages of an individual life. It became
possible to individuate persons with reference to norms of healthy sexual
development and deviations from them. This medical individualisation,
Foucault argues, implanted perversions. In contrast to an earlier classifica-
tion of sexual transgressions in terms of acts, in which a binary opposition
of licit and illicit was adequate, these new knowledges focussed on the
 Literary Erotics 103

nature of the being of the actors, creating new types of personality requiring
to be investigated, measured and understood (pp. 36-49). So, for example,
in contrast to the sodomite once defined primarily by his illicit act, the
nineteenth-century homosexual came to be identified as a complex person-
ality with 'a past, a case history, and a childhood', and a problematic future,
a being with a specific character to be fathomed by being identified with a
certain inversion of the masculine and the feminine (p. 43). The implanta-
tion of perversions thus intensified and consolidated multiple sexualities,
such that the medical schemata of sexual kinds were at once mechanisms of
knowledge or classification and types of practice, forms which came to be
lived out by individuals (p. 48).
If the causal powers of sex were ubiquitous, they were also obscure, since
they promised to reveal a self whose truth was directly proportional to its
reclusiveness. The medical-moral expert emerged as one who could bring
to light that which was hidden in the individual and comprehend the mys-
terious workings of latent sexual natures. In the secularisation of confession
which Foucault identifies (pp. 53-73), sex became the deep and elusive
cause which must be spoken - in all the detail it may be necessary to hear
- by the individual who is the object of medical and moral concern. This
strategy of confession constituted sex as the always partly hidden problem
within the self which must be turned over and over. Confessional medicine
intensified the interest of the very sensations, thoughts, acts and desires
which it sought to know and regulate. If this form of speaking about sex was
therapeutic, it was also pathogenic. It complicated and deepened the
meanings which sexual problems could have. Even in fostering a desire for
self-improvement, sexual medicine made for volatile sensibilities. This is
reflected in concerns such as the fear that 'over-mothering' would bring out
a latent homosexuality in the sons of middle-class families. Exposure to
sexual-medical influences made it possible for individuals to internalise
various norms and feel new kinds of anxiety, alarm, pain, guilt, failure and
embarrassment, and to engage in new kinds of introspection. The pages of
William Acton's The Functions and Disorders of the Reproductive Organs
in Childhood, Youth, Adult Age, and Advanced Life (1865), for instance,
give an insight into this pathogenic dimension of Victorian medicine. Ap-
pealing to colleagues to humanise their practice by considering the physi-
ological, emotional and moral issues of sex, Acton publishes his work
precisely in order to exert 'some good and practical influence on public
health and public morals' (Preface). Yet the cases, anecdotes, testimonials
and advice on cures which he publishes show that his male patients and
readers could literally worry themselves sick in ways that would not have
been possible before the medical intensification of concerns with masturba-
104 On Pornography

tion and similar problems such as marital excess and hypochondriacal

feelings about sex (pp. 69-81, 102-15).
Sexual medicine enjoyed a significant popular print dissemination in the
Victorian period. 7 Books, manuals, pamphlets and lectures played a major
role in laicising sexual-medical knowledges and forms of judgement. In
particular, the concerns of sexual medicine became part of the 'habitus' of
middle-class reading. households. Individuals were sensitised to the prob-
lem and value of their own and others' health, within a framework of
relations between parent and child, and wife and husband. For instance, in
the dense web of causes and effects, individuals were alerted not only to the
harmful effects of masturbation but also the unconscious possible causes of
this apparent evil- a flawed upbringing? an inner compulsion? a bad diet or
regimen? - such that the whole fabric of everyday life could be brought
under careful scrutiny (Acton, 1865, pp. 1-75). The confessional arrange-
ment of sexual medicine did not rely solely on spoken exchanges. Individu-
als were encouraged to read the signs of the body for themselves, to seek
and find in its bearing, gestures and appearance so many indices of a state
of health and of personal and social aptitude. Literature on masturbation, for
instance, urged parents to police the activity, not necessarily by extracting
verbal confessions but by recognising the signs of its presence and estab-
lishing a watchful and supposedly therapeutic environment. In Man's Strength
and Woman's Beauty, P. H. Chevasse, MD, writes that 'the confirmed
masturbator' bears the impress of nature's penalty 'in his manner and upon
his face' (1879, p. 392). Similarly, in The Science of a New Life, John
Cowan, MD, cites another writer, Lallemand, on the effects of self-abuse, in
a subsection entitled 'Signs in the boy, girl or man, that he who runs may
read':

[T]he slow and progressive derangement of his or her health, the dimin-
ished energy of application, the languid movement, the stooping gait, the
desertion of social games, the solitary walk, late rising, livid and sunken
eye, and many other symptoms, will fix the attention or"every intelligent
and competent guardian of youth.

(1970[1874], p. 362)

In general, then, the techniques of secular confession and observation

comprised a style of physical and moral self-management to be exercised
within middle-class domestic life. The literary production and consumption
of a writer like D. H. Lawrence, with all its minute observation of sexualities,
would have been impossible had this broader, hermeneutic 'discursifying'
 Literary Erotics 105

of sex and 'consciencising' of persons not occurred in popular sexual

medicine.
The second major factor which made serious sexual literature possible
was a highly localised transformation of sexual knowledges into aesthetic
practice, involving a new application of the Romantic dialectic of thought
and feeling (and its avatars such as mind and body, morality and the senses,
norm and experience). 'Lawrentian' writing and reading were made possi-
ble by a programme of aesthetic self-fashioning which was the elite prov-
ince of an upper middle-class coterie. We can illustrate this through the
works of the Victorian social and sexual reformer, Edward Carpenter.
Others have analysed his writings and politics, and Emile Delavenay (1971)
has traced connections between Carpenter and Lawrence. Sheila Rowbotham
analyses Carpenter's project as a sexual personal politics linked to a
tradition of ethical or romantic socialism (Rowbotham and Weeks, 1977,
pp. 25-138) and Chushichi Tsuzuki (1980, p. 3) describes that politics as
best suited to a 'local socialist body or such small community'. Through his
public addresses, books and pamphlets, and by maintaining an open intel-
lectual household at Millthorpe, Carpenter advocated a 'simplification of
life' and established himself as a charismatic mentor figure. Though he
tended not to become an adherent to particular party platforms or sectarian
organisations, his interests were related to progressive political movements,
including Fabianism and feminism, and he drew his audience from ad-
vanced socialist and literary circles (cf. Delavenay, pp. 85-9). The relevant
point for us is that his species of 'political' idealism was based on a
practical endeavour to achieve a certain intensification and stylisation of
personal existence. His project is a paradigmatic case of the aesthetic
incorporation of sexual disciplines.
Carpenter's writings propagate that technique of dialectical self-shaping
which derived from the Romantic practice of culture already described in
Chapter 2 above. They are permeated by the strategy of distinguishing and
reconciling opposites such as thoughts and feeling, morality and sensuous-
ness, in order to perfect one's ethical being. They embody a Romantic
historicism in which phylogeny imitates ontogeny. In the history of 'Man',
there is a first stage in which 'the knower, the knowledge and the thing
known are still undifferentiated' (1907, p. 54). Instinct is wedded to intel-
ligence, art expresses the whole being, and social life is not yet ruptured by
the rise of the ego. As it was for Matthew Arnold, this stage is embodied
above all in Hellenic civilisation. Resolutely faithful to his Romantic mod-
els, Carpenter proceeds to trace the second stage of this cultural history in
which the original unified consciousness is disrupted by the advent of self-
consciousness; the subject and the object of knowledge are divided such
106 On Pornography

that knowledge itself is reduced to abstract 'thought' cast adrift from feeling
and immediate experience. Art suffers in this dissociation and grows away
from Nature and from actual life. Even within this second stage, though,
identified as usual with the long present, the third is anticipated as an
integral state of being and knowledge which is the condition of a culture
superior to the lost edenic state precisely because it has emerged through the
diversifying experience of disunity (1907, Chapter IV, 'The Three Stages of
Consciousness').
This aesthetic paradigm is sexualised in Carpenter's work. To achieve
self-perfection, one must free oneself from purely rational consciousness by
accepting the reality of sensuous arid bodily experience. At the same time,
one must strive to ensure that this experience never becomes merely sensual
but is kept in touch with - and so renews - the capacity for intelligent and
moral reflection (1907, Chapters V and VI, 'The Self and its Affiliations').
Precisely because sexual feelings are so deeply implicated in life they must
be brought into harmony with the rest of human experience. Not until
sexual love is 'checked and brought into conflict with the other parts of his
being' does the whole nature of 'man' - sexual and moral - rise into
consciousness (1905, p. 11) in that process which Carpenter calls love's
'coming-of-age'.
The sexual 'sciences' and the confessional tactics of self-knowledge
operating within them provide new ways in which individuals like Carpen-
ter can identify and seek to reconcile opposing tendencies within the self.
Amongst Carpenter's many adaptations of biological, physiological and
psychological theories, the sexualising of the aesthetic is evident in his use
of an almost Fourierist model called the 'Great Sympathetic', elaborated by
the moral physiologist Davey in 1858 (Carpenter, 1907, pp. 113-17). In this
model, the dialectical topography of Romantic aesthetics is provided with
bodily coordinates. There is an organic seat of the emotions in the 'nervous'
or 'ganglionic' centres, including the solar plexus. Complete emotional
sensibility requires the interaction of the organic with the conscious and
reflex systems, the latter being located in the brain and in the spinal cord
and medulla respectively. Carpenter cites Davey's notion that the Great
Sympathetic exercised an 'architectural power, presiding over the forma-
tion and life of the body and the organs - a power to which even the brain
and spinal cord were subordinate' (1907, pp. 113--4). He speculates that
first the motor and then the mental capacities have come to overlie the
foundation of organic and emotional life. Modern man has become domi-
nated by mental consciousness, which means one must anticipate a time
when the deeper nervous powers, having passed into 'the region of subcon-
sciousness' (p. 116), will be restored in a dynamic fulfilment of all human
faculties. Exactly the same sexualisation of the dialectic and use of moral
 Literary Erotics 107

physiology is to provide the framework for Lawrence, including his criti-

cism of Freudian psychoanalysis for ignoring the true nature of the uncon-
scious as a vital, organic region of experience which underlies all conscious
thought and feeling. According to Lawrence, the unconscious is

that active spontaneity which rouses in each individual organism at the

moment of fusion of the parent nuclei, and which, in polarized connec-
tion with the external universe, gradually evolves or elaborates its own
individual psyche and corpus, bringing both mind and body forth from
itself.
(Lawrence, 1971, p. 242)

The nuclei of the nerve centres are 'centres of spontaneous consciousness'

(p. 242). Imbalances of the self occur if the will is in discord with the
sympathetic centres or if mental impulses destroy spontaneity and the
dynamic connection with others (p. 248).
A further feature of this aesthetic construction of sexuality is that the
dialectic is mapped onto the polarity of masculine and feminine. Definitions
of sexual difference derived from sexual knowledges as diverse as repro-
ductive biology and moral physiology provide aesthetic discourse with the
potential to identify the distinction between the masculine and the feminine
with that between the rational and the affective. So, for instance, developing
the theme that the body grows from a cell in which male and female are
originally one and which contains all the possibilities of the self, including
the division between male and female tendencies and their ultimate recon-
ciliation, Carpenter pictures sexual intercourse as an exercise in dialectics,
important not just for procreation but for physical and spiritual regenera-
tion:

[l]n truth it is probable, I think ... that the spermatozoa pass through the
tissues and affect the general body of the female, as well as that the male
absorbs minutest cells from the female; and that generally, even without
the actual Sex-act, there is an interchange of vital and ethereal elements
- so that it might be said there is a kind of generation taking place within
each of the persons concerned . . .
(Carpenter, 1905, p. 27)

In similar terms, Lawrence writes in Fantasia of the Unconscious ( 1971, pp.

31-3) that with the 'hard physiological fact' of the fusion of the 'father
nucleus' and the 'mother nucleus' is produced the new individual cell
which is immediately a new self, retaining the polarity of male and female
108 On Pornography

defmed through the play of will and sympathy, power and ductility. This
theme of a dialectical sexual aesthetics was supported - with some attempt
at popularisation in the field of sex reform - by various others writing
before and during Lawrence's own career. The evolution of human
'culture', it was assumed, would allow the superior union of men and
women to occur through the reconciliation of essential masculine and
feminine differences in which each individual would find self-realisation:
any attempt to make women the equal of men as they 'merely' are in the
present would therefore be premature, according to some writers at least
(for example, Charles Leland, The Alternate Sex, 1904).
In this kind of discourse, 'sex' was subsumed into an aesthetic practice of
self-culture. From the works of Havelock Ellis on primary, secondary and
tertiary sexual characteristics (1929) to publications like Otto Weininger's
Sex and Character (1906), there is an overlap of physiological and moral
categories and a major identification of aesthetic oppositions such as reason
and emotion with a male/female characterology. In this context, Carpen-
ter's life and work are exemplary of the way in which certain highly-
educated coteries attempted to fabricate an ethos through the sexological
transformation of aesthetic self-culture.
For such groups, appreciation of the arts is a means of integrating intel-
lectual and sensual being. According to Carpenter (1912, pp. 207ff), crea-
tivity is the fusion of masculine and feminine traits as revealed in, for
example, the works of Michelangelo. This notion is reproduced by Law-
rence in such writings as 'Study of Thomas Hardy' (1936, pp. 398-516) in
terms highly reminiscent- as Delavenay points out (1971, pp. 205-15) -of
Carpenter's argument that literature, including the novel, must revitalise the
moral life by exploring the complex polarities and creative androgynous
potential of sexual being. 8
Before Lawrence even began to write, the apparatus of sexual aesthetics
was assembled as the condition of his doing so. A Romantic cultivation of
the self had absorbed sexual norms, producing a new personage we might
call the sexual aesthete. The dialectic offered a way of developing and
mastering the self through an aesthetic stylisation of sex. In Carpenter's
view, as subsequently in Lawrence's, the social harms or dangers of sex
could be overcome by the diffusion of this cultural ideal. The key to a 'free
and gracious public life' is the purification and refinement of the moral
nature, a work of conscience which needs no external guide (Carpenter,
1905, p. 23). We can see why, for the cognoscenti, sexual content carne to
be appropriated not as something super-added to the aesthetic but as some-
thing inseparable from the form of a creative work and the activity in which
the writer or reader problematised sexuality through it.
 Literary Erotics 109
The other major factor which made it possible for literary-aesthetic
and sexual-medical organisations of the self to converge was the literary
appropriation of pornography. We have already noted the role of early-
modern pornography as literary device of self-interrogation and excitation,
and the directly auto-erotic formation of the conscience and body associated
with the use of nineteenth-century perverse (medicalised) pornography. It
was the apparatus of Romantic aesthetics which allowed serious literature
to enter an exchange with the genre of confessional pornography. In this
process, on the one hand, literary aesthetics annexed various techniques
of pornographic writing and their auto-erotic potential, thus issuing a
challenge to explore supposedly repressed sexualities. Sexual excitation
was considered necessary in order to tap dimensions of experience lying
beyond the reach of norms and inhibitions. On the other hand, literary
aesthetics employed a critical and moralising strategy, by submitting the
erotic materials to aesthetic interpretation and judgement. In so doing, it
transformed the techniques of pornography by combining them with liter-
ary devices used in the serious novel. This balancing act depended on the
dialectical ability of the writer and reader - that is, the ability to treat auto-
erotic excitation as a necessary moment of de-repression and at the same
time to reconcile it with the intellectual and moral imperatives of educative
literature.
The literary techniques which transformed and were in turn modified by
this appropriation of pornography included complex characterisation and
psychological narrative, hermeneutic problematisation, poetic or symbolic
deepening, and thematic reflection. Literature drew from pornography the
stylistic resources of confessional dialogue and eroticising physical descrip-
tion, including the device of presenting sexual experiences and sensations
in detail, and the use of vernacular and obscene language to refer to bodies
and acts. It preserved their auto-erotic interest while modifying it aestheti-
cally in the direction of poetic introspection, complex motivation and sus-
tained inquiry into the enigmatic nature of sex - a generic transmutation
present in the merest description of a lover's swoon before a rainbow
(Lawrence, 1949, p. 299).
The educative novel, of course, also borrows techniques from sources
other than pornography. So, for instance, the devices of poetic or meta-
phoric deepening are drawn in part from a specialised nineteenth-century
tradition of the erotic lyric, where a confessional interest in sexuality was
already subject to the dialectic mediation of Romantic aesthetics. This
tradition included the verse of Swinburne and Wilde and, in more populist
mode, Whitman's often homoerotic poetic affirmations. We may record
Carpenter's imitation of Whitman in his Towards Democracy (1896) and
110 On Pornography

Lawrence's proselytising for a Whitmanesque free verse of 'the immediate,

instant self' (1936, p. 222). Lawrence is able to apply devices of lyric
writing to the work of psychological characterisation in the novel in a way
that allows poetic intensification of sexual experiences (cf. Lady Chatterley's
Lover, 1961, pp. 138-9).
In general, then, Romantic aesthetics permitted a new use of literature:
the appropriately trained writer and reader could engage in a sexualisation
of the dialectic, and a 'dialecticisation' of sex. Writing and reading erotica
became a means for individuals to organise a new and special relation to
their self, one which required them to identify, differentiate, intensify and
harmonise the sensuous and the moral-reflective faculties. Given that within
this demanding exercise of conscience one must be alert to the ever-present
dangers of falling into a relation to one's own being that is either too sensual
and morally inert or too cerebral and heavily moralised, it is unsurprising
that Lawrence was critical not only of pornographers but also of fellow
aesthetes like Swinburne. Here was a game, at once self-forming and self-
serving, that few of the literati could resist playing. If, on one side, the body
of pornography is too basely sensual, on the other side poor 'Swinburne's
"white thighs" are purely mental' (Lawrence, 1936, p. 552). In either
instance, the discerning of a non-dialectical relation to sex in others is a sign
that the beholder, Lawrence, must strive the harder to reconcile the opposed
tendencies within himself. It was now the task of the novelist to reconcile
'a theory of being and knowing' with a 'living sense of being' (p. 479).
Lawrence's novels show in some detail the literary appropriation of
sexual medicine and pornography. These works reinforce the relation al-
ready forged in popular medical knowledges between sexual acts or desires
and personalities. In particular they sustain the erotic and excitatory im-
agery of perversions elaborated in medical and confessional pornography,
frequently presenting perverse tendencies at the heart of so-called normal
sexuality as that which must be confronted in order fully to know and
understand the complex nature of the self. The novels mediate perverse and
erotic elements aesthetically. Erotic writing is offered as a means of becom-
ing open to the sensuous potentiality of the self, but the senses must in turn
be brought into a revitalising relation with the whole of one's experience.
At the same time, the aesthetic dialectic is sexualised. For example, the
division of the ethical substance is played out by exploring the imagery of
sexual difference, including a conception of sexual inversion that is now
used to project and reconcile opposing tendencies within the self. Failures
to reconcile the inner tendencies are identified with forms of illness and
associated with physiological and erotogenic symptoms. Images of patho-
logy are also used in an apparently positive form, that is, to suggest mental
 Literary Erotics 111
and sensual tendencies which must be acknowledged and overcome if the
self is to be made whole.
Lawrence's novels aesthetically transform the medicalised Victorian
middle-class family and its cast of characters described by Foucault (1979,
pp. 103-22). Women's bodies are sexualised, oriented either towards hys-
teria, frigidity, denial of vitality by intellectual self-consciousness, such that
they are seen as castrating in their relation to men; or towards conductivity
of emotion, intuitive being, mysterious fecundity and a potential for life
through acceptance of the phallus. Men's bodies and minds are sexualised
correspondingly, being subject on the one hand to sensual and mental
excess, forms of wilfulness and impotence; and on the other to release from
egoism through the polarity of masculine and feminine, allowing 'man' and
'woman' to emerge into their own supposedly essential being. These char-
actt\risations support narratives of sickness and cure. Readers are asked to
identify with situations in which, beginning from a state of moral and
physiological fragility, characters find spiritual regeneration in sexual vital-
ity and harmony; otherwise they intellectualise and sicken, plunging in an
auto-erotic spiral towards frigidity, impotence or disintegration.
Critics have often commented on the Oedipal pattern of Sons and Lovers
(first published in 1913), authenticating it with notions of authorial experi-
ence. Such a pattern can also be seen in more historical terms, however, as
part of the specialised technique of the psycho-aesthetic construction of the
self. The narrative turns on the difficulties of understanding one's own
desire, passing through incestuous drives towards other possible expres-
sions-. It sets up the tension between idealising sex, and failing to relate
sensual awakenings to the needs and possibilities of the whole self. Paul's
relation to Miriam presents the problem of abstract intimacy, of being 'too
fierce in our what they call purity ... a sort of dirtiness' (1948, p. 343); it
is 'such a matter of the soul, all thought and weary struggle into conscious-
ness' (p. 213). His relation with Clara shows the opposite problem. Despite
the significance of erotic experience, gradually the passion becomes spirit-
less, 'some mechanical effort spoilt their loving, or, when they had splendid
moments, they had them separately, and not so satisfactorily' (p. 443). In
this early novel by Lawrence we already see how the narrative carries an
argument that subjectivity must be incomplete, with the individual always
caught up in a process of growth and yet possible sickness and perversion
found within the polarities of sexual being.
The Rainbow (1949, first published in 1915) and Women in Love (1960,
first published in 1921) are similar improvisations on the dialectical forma-
tion of the self. The former invokes a myth of organic personal and commu-
nal life, in the marriage of Tom and Lydia, against which to measure a
112 On Pornography
dissociation of consciousness and experience evident in the following
generations. This division is known, and may be healed, through the oppo-
sitions of the feminine and the masculine, as depicted in the relation of
Ursula and Anton. The characterisation of Ursula shows how pornographic-
medical elements are mobilised in presenting a narrative of aesthetic and
moral growth. It includes, for instance, imagery of female 'sexual inver-
sion'. The relationship with Winifred appropriates and adapts the porno-
graphic theme of the novice and her teacher. This wrong tum of the body
and mind is incorporated as a necessary false dawn of Ursula's awakening,
in which it is made clear that independent female intellectual activity is
barren and perverse: 'Winifred Inger was also interested in the Women's
Movement' (1949, p. 343). This characterisation also includes the cathartic
violence and pleasure of physically venting frustration in terms deriving
from the literature of flagellation - in the beating of the 'rat-like' boy
(pp. 397-9).
In Women in Love, the danger of women becoming merely intellectual is
embodied in Hermione, in a satire of so-called Bloomsbury affectation.
Hermione is presented as suffering 'a horrible sickness of dissolution'
within the body and soul (1960, p. 103), as a hysteric in whom the perver-
sion of all capacity for spontaneity leads to a kind of insanity and threat of
castration which is seen in her physical attack on Birkin (pp. 116--19). The
relation of Gudrun and Gerald is one in which the partners fail to balance
the various elements of the sexual personality and so become self-willed
and destructive. The potential of mutuality is demonstrated in the relation of
Ursula and Birkin. Here, 'masculine' intellectual potency is modified be-
tween and within the characters by 'feminine' inwardness, permitting the
androgynous transcendence of difference ('floods of ineffable darkness and
ineffable riches' from a 'source deeper than the phallic source' (p. 354)).
This representation does not exclude moments of consoling homoerotic
heroism for men, as encountered in the wrestling scene between Birkin and
Gerald (pp. 300--11). Broadly, the imagery of masculine and feminine
oppositions repeats the eroticisation of the body already discussed in rela-
tion to Carpenter, as when Lawrence writes of 'a new current of passional
electrical energy . . . released from the darkest poles of the body and
established in perfect circuit' between the lovers (p. 353).
Lady Chatterley's Lover (1961, first published in 1928), Lawrence's
most pornographic novel, works with the now familiar combinatory of
pathologies. The feminine is defined as a sexual essence which, if re-
pressed, makes women sick. Masculine identity is seen to have been ren-
dered cerebral and impotent. Clifford is representative of those ruined boys
through whom Lawrence depicts mental self-consciousness as perverse and
 Literary Erotics 113

destructive, making its victim a castrato. These terms provide the logic for
a narrative lesson: the woman must free the true 'female' in herself through
sexual sojourns, letting go the social 'person' (1961, p. 126). The meaning
of sex, it is insisted, cannot be grasped by those flirting with it as a fashion-
able idea, since this imprisons men and women in their separate egos, as in
Connie's first sexual encounters on the Continent (cf. pp. 5-9). Connie's
maturation includes her awakening to the phallic potency of Mellors whose
characterisation brings into play the pornographic image of the supersexed
male. The argument is contained isotopically in Chapter 10, in a trio of
sexual acts. On the first occasion, Mellors achieves orgasm and is blind to
Connie's numbness. On the second, there is growing responsiveness on her
part, but a residue of mental resistance, and a separateness in his pleasure.
On the third, she is released from self-consciousness by the 'unconscious'
force of passion. Mellors' taking of her by surprise is valorised because it
is associated with an epiphanal quality in the experience. The real female is
said to emerge, not 'Lady Chatterley' but 'Connie'. Again, the book adapts
pornographic elements such as the dialogic relation of initiator and novice,
and the mock-pastoral convention according to which a virile lower-class
hero finds out the nymph in an aristocratic 'Lady'.
We may show in a little more detail how the pathological and perverse
inform this novel. The imagery of fixation, including infantile regression
and male hysteria, is used to complete the portrayal of Clifford's impotence.
His auto-erotic intimacy with his nurse, Mrs Bolton, is presented as the
ultimate stage of his ethical decay. On the other hand, if Connie is to
discover the truth of sex she must do so through trial and error, passing
through various dangerous psycho-sexual stages. For instance, clitoral or-
gasm is presented as stubborn gratification in which she resists mutuality, a
sign that she is too active and the man too passive, as in her relation with
Michaelis. Lawrence's association of clitorally-oriented intercourse with
female masturbation is evident here. In an improvisation on existing
erotogenic zonings of the body, the clitoris is pathologised through meta-
phoric identification with the beak of a bird. The instrument that gratifies
the wilful sexuality of the woman can only injure her lover. This independ-
ent and perverse sexuality must be tamed by the gamekeeper if the true
'female' is to be set free.
A culminating act in Connie's relation with Mellors is anal intercourse.
How are we to classify such a scene? In one sense, it is yet another
sodomitic scene in perverse, 'turkish' pornography, with a distinct sense of
sport in breaking taboos. At the same time, it is the first explicit scene of
anal sex in the serious novel. The appeal to 'sheer sensuality' is supposed
'to purify and quicken the mind' (p. 259) and revitalise physical and
114 On Pornography

spiritual life. The excitatory writing is taken to be necessary in order to gain

access to new depths of being, while the erotic interest is poetically height-
ened by projecting and resolving through it the metaphysical tensions
identified with the relations of male and female. The act is used to signify
the upsurge of the most hidden unspoken desire and the final purging of
female resistance. Even in this 'phallic hunting out' of 'the last and deepest
recess of organic shame' (p. 259), the myth of androgyny persists: there is
no clitoris here. Curiously, anal intercourse is both an esoteric metaphor and
a conjugal technique. The reconciliation of the Romantically-divided self in
a purifying erotic epiphany transcends the merely social use of sex in the
getting of children. Supposedly, in this liberation from all conventional
repression of the sexual drive, the masculine and feminine are fully realised
and the difference between them is transcended in a new and finally com-
pleted form of subjectivity.
While we have focussed on how serious educative literature borrows
from sexual medicine and pornography, it is also worth noting that it draws
on other areas such as psychoanalysis. We recall that, for Freud (1977, pp.
45-87), if the normal psycho-sexual 'life' can be constituted, this is because
it is knowable through so many points of contact with the perversions. The
latter are deviations of the sexual aim which either extend anatomically
beyond the regions of the body designed for sexual use, or are fixed in a
relation to the sexual object which should be passed through on the way to
discovering a final sexual aim (pp. 61-2). The perverse, the neurotic and the
normal are classes of sexual life, outcomes of a development: the 'disposi-
tion to perversions' itself forms 'a part of what passes as the normal
constitution' (p. 86). The 'life' is seen as an always more or less proble-
matic movement through various stages which involve impulses or wishes
that may be repressed and yet remain cathectic. Of interest here, in relation
to literary characterology, is the question of whether 'a special relation
holds between the perverse disposition and the particular form of illness
adopted'. Freud retains the possibility that the perversions exist in relation
to 'psychoneurotic constitutions' which might be distinguished according
to 'the innate preponderance of one or the other of the erotogenic zones or
one or the other of the component instincts' (p. 86). While the extent to
which Freud's own conception of a dialectical relation between drive and
norm is indebted to Romantic aesthetics is clearly a broader question,
psychoanalytic discourse can be seen to lend psychological and physical
coordinates to contemporary literary erotics.
In fact Freud's identification of fixation at the anal stage with the forma-
tion of a particular character type is typical of the 'implanting' strategies
whereby an act in the sexual repertory is turned into the profound and
 Literary Erotics 115

indelible sign of a pathological personality -one in which the secret of anal

erotism is seen to persist as a never fully repressed element in the organisa-
tion and transformation of desire (see especially Freud, 1977, pp. 295-302).
For its part, Lawrence's counter-valorisation of this character trait as the
repressed truth (that is, true because repressed) of a higher sexuality is
nothing new either. It is another case of the pornographic inversion of a
medical characterology - one that makes a sexological image of regression
over into an image of liberating and norm-breaking transgression and places
the attendant charge of perverse pleasure and self-discovery at the service
of aesthetic self-cultivation.
In all of these instances we should not lose sight of the fact that it is the
novel's manner of addressing and enrolling an imagined reader- who is
sometimes the real reader - that is crucial. The deployment of biblio-erotic
technique in the educative novel is the means by which competent readers
are forced to relate to themselves as subjects of repressed desires and
pleasures. This is the central element of the pact formed between the writers
and readers of serious erotic literature. What follows from it is the practice
in which readers control and stylise their always newly-discovered sexual
selves according to the reconciliatory imperatives of aesthetic self-culture
where they have the capacity to do so. The rhetorical organisation of such
literature is thus designed to induct readers into a certain aesthetic-erotic
experimenting with the self. It is integral to the effect of the anal-erotic
episode in Lady Chatterley's Lover, for example, that its description is
highly metaphoric, recondite and suggestive. This is what involves the
reader in the confessional stratagem of attributing the truth of sex to that
which is most hidden; to that which must therefore be acknowledged and
brought to light in oneself. Literary criticism in this context can be little
more than an acting out of this stratagem. It is entirely appropriate, then,
that the frrst literary critical publication of the dark secret of Lady Chatterley's
Lover should have been entitled 'Regina v. Penguin Books Ltd: An Undis-
closed Element in the Case' (Sparrow, 1966, pp. 40--58).

A FURTHER CHAPTER IN LITERARY EROTICS

At this point we can make explicit the difference between our historical
analysis of pornography and post-modernist accounts informed by psycho-
analytic and Marxian currents. Stephen Heath's (1982) The Sexual Fix is
representative of such accounts. Heath writes that 'sexuality' is a cultural
system through which the meaning of 'sex' (acts and relations) and associ-
ated forms of personal identity have been produced in the nineteenth and
116 On Pornography

twentieth centuries. Knowledges such as sexual medicine, sexology, psy-

chology and psychoanalysis have been central to that system:

[S]exuality is without the importance ascribed to it in our contemporary

society (Western capitalist); it is without that importance because it does
not exist as such, because there is no such thing as sexuality; what we
have experienced and are experiencing is the fabrication of a 'sexuality',
the construction of something called 'sexuality' through a set of repre-
sentations - images, discourses, ways of picturing and describing - that
propose and confirm, that make up this sexuality to which we are then
referred and held in our lives, a whole sexual fix precisely; the much-
vaunted 'liberation' of sexuality, our triumphant emergence from the
'dark ages', is thus not a liberation but a myth, an ideology, the definition
of a new mode of conformity (that can be understood, moreover,
in relation to the capitalist system, the production of a commodity
'sexuality').

(Heath, 1982, pp. 2-3)

At the same time, argues Heath, to say that sexuality does not exist as such
is not to deny the reality and complexity of the sexual dimension in contem-
porary Western culture. It is, rather, to indicate the possibility of displacing
its present limited construction as 'sexuality' and changing the problematic
forms of social relations the latter term involves (pp. 3-4). For Heath,
literature overlaps with the social knowledges and practices - including
pornography- which operate in the system of 'sexuality'. So, for instance,
sexual writing in the novel supports and is supported by 'the novelistic'-
Heath's term for the dispersed forms of narrative and character construction
operating within those social knowledges (Chapter VII). The work of
Lawrence contributes in a major way to the 'gaining ground' of 'sexuality'
(p. 125).
The problem with this account is that it explains the function of literature
and other knowledges through a single, general logic of representation,
even though 'representation' indicates not a reflection of the real but a
construction of meaning for a subject. Heath argues that novelistic sexual
narrative appears to open into the truth of experience and make self-
realisation possible, but that in fact it is highly normative and forecloses the
possibilities of experience. It acts out a cycle of tension and release, a
progression towards orgasm, in a ritual and fundamentally insecure attempt
to deny an underlying male lack. Dominant literary and sexological writing
involves a phallic fantasy through which the threat of female difference is
 Literary Erotics 117

apparently denied by projecting the female as existing for and through the
pleasure of the male whose identity thus seems to be confirmed. Complicit
with other empiricisms of sexual knowledge, literature thus represses and
reproduces the very anxiety which generates it, creating a sexual 'fix' in the
dual sense that the possibilities of subjective identity are narrowed down
into set masculine and feminine forms, and that this drama is repeated
compulsively. This ideological function is present in any instance of the
system of sexuality, and within literature operates in an historical con-
tinuum through such different works as those of Dickens and Lawrence (see
especially Heath's Chapter VII). Literature is thus seen as having an essen-
tial relation to sexuality. It is the theatre in which the subject of conscious-
ness experiences an illusory fullness of being. This subject unconsciously
opts out of the play of sexual difference whose prolongation is the bliss of
deferred identity: the endless anticlimax of selfhood. The progressive lib-
eration envisioned by Heath is described thus:

The end of oppression is a recasting of social relations that leaves men

and women free, outside of any commodification of the sexual, removed
from any of the violence and alienation of circulation and exchange as
agents of sex and orgasm, away from any definition as a sexual identity,
the identity of a sex, being fixed to this or that image, this or that norm,
to this thing 'sexuality'. (p. 152)

Literary experimentation is assumed to offer the possibility of un-fixing the

categories oflanguage and hence the representations of 'male' and 'female'
and the very principle of sexual identity. 9
Heath's account is representative of a form of poststructuralist theory
which has been made possible only by the historical wedding of literature
and sexual knowledges officiated over by Romantic aesthetics. In the oppo-
sition between fixed sexual identity and undifferentiated or deferred iden-
tity (or between the phallus as principle of representational closure and a
feminine principle of otherness or excess), and in the 'play of signification'
achieved by oscillating between or eluding previously defined identifica-
tions of sexuality, we find yet another variation upon the dialectical polari-
sation of masculine and feminine, mental and pulsional being, norm and
desire, which we have already discussed. This more recent specialised use
of the dialectic is supposed to provide a liberatory teleology for the subject
who must ultimately transcend the ideological experience of sexual differ-
ence, uncovering through literature the hidden flux of sexual being.
In reproducing this technique of aesthetic subject-formation, postmodemist
theorising such as Heath's begs the question of whether literature has any
118 On Pornography

necessary or fundamental relation to sexuality. Our analysis shows that

serious literature has had a much more contingent relation to sexuality than
is allowed for in this type of account. This is why we have displaced the
usual concern with whether some particular instance of 'erotic literature'
gives a true or false, an open or closed representation of sex by describing
the conditions that have made a particular 'literary erotics' possible. Only
under specific historical and cultural circumstances was one literary school
able to take over a repertoire of erotic forms of writing - the techniques of
biblio-erotics- and establish a new conduit for disciplines of sexuality. This
event depended on no general 'ideological' mechanism of subject-forma-
tion, but on specific (medical, pornographic) conscience-forming uses of
literacy, and on the historical aestheticisation of sexuality achieved when
certain experimental groups succeeded in integrating the techniques of
confession and those of literary self-cultivation. In arguing that the erotic
novel became a textbook for disseminating norms of the sexual person, we
use 'norm' not to oppose it to 'experience' or 'drive' as occurs within
dialectical argument, but to re-situate the aesthetic dialectic itself as biblio-
erotic ritual for actually organising an individual's relation to his or her self
- one that is far from outmoded.

RULES OF THE GAME

The ethical function of serious sexual literature established in the late

nineteenth and early twentieth centuries can be further specified by drawing
a contrast with a historically linked use of literacy. In The Use of Pleasure
(1986), Foucault distinguishes between morality, as a general rule or code
of behaviour, and ethics, as the way in which individuals constitute them-
selves in practice as moral subjects. To show that there may be different
ethical practices of life operating in relation to the same general moral code
Foucault gives the example of conjugal fidelity (pp. 25-32). Practising
fidelity can entail different ways of determining the ethical substance, that
is, nominating some part of the self over which to become one's own
steward. So for example one might act out of respect for personal obliga-
tions, or in order to attain mastery over one's desires. Then there are
different modes of taking individual responsibility in relation to a moral
code: one might be moved to act as a member of a community, as heir to a
spiritual tradition, or in order to offer an exemplary personal life. Differ-
ences occur also in the form of work performed on the self: for instance,
fidelity might mean an abrupt renunciation of pleasures or a long vigil over
all conceivable movements of desire. Finally there are different ways of
 Literary Erotics 119

establishing the goal of moral actions: fidelity may be given its importance
within a project of self-discipline, as a means of self-purification assuring
spiritual salvation, and so on. By participating in these variable modes of
conduct, individuals become more than simply the ciphers of a code, they
become subjects of moral action.
Our point of contrast with Lawrentian writings is found in a mid-Victor-
ian type of manual, which disseminated specialised knowledges (sexual
medicine, biology, moral physiology, psychology) amongst middle-class
reading families, and promoted a capacity for heath-consciousness in rela-
tion to sex and norms of domestic management, childbearing, childrearing,
diet and hygiene. 10 Without ignoring important differences between indi-
vidual texts, it is evident that the definition of conjugal fidelity was central
to the writers of these manuals and their readers, and was related to an ethic
of self-restraint. 11 For those approaching sexual medicine in the same way
as Marcus (1964) and Gay (1984), such writings might seem symptomatic
of the dark night of Victorian morality, shrouding and distorting human
sexuality. However, these publications can be viewed more positively as
part of a programme for shaping and managing the personal life. Part of this
programme was a norm of fidelity which allows us to relativise the concep-
tion of love and fidelity which Lawrence would propose as leading to a
fundamental truth of sex.
If we confine ourselves to this definition of fidelity in the Victorian
manuals, we see that the singling-out of the husband-wife relation bore
directly on individuals' willingness to manage the physical and emotional
'substance' of their own sexuality. Addressed specifically as wives, hus-
bands, or as individuals contemplating marriage, readers were asked to
become the physicians of their own sexual soul, responsible for understand-
ing the laws which govern the physical and moral life. Only through the
wise conduct of partners would the 'scientific' knowledge of sexuality bear
fruit in the lives of individuals. The kind of work on the self called for was
a personal commitment, a continuous care in preparing for marriage, choos-
ing a partner, and building a relationship. In terms of purposes, fidelity was
seen as an ongoing labour of love necessary for physical and moral health,
such that it was not strange to speak of sexual restraint as paving the way
towards a perfect unity of the couple. In Cowan's The Science of a New
Life, for instance, individuals are urged to monitor 'every-day thoughts,
words and actions' (Cowan, [1874] 1970, p. 46) in order to purify their own
character and understand that of others. Cautionary tales and character-
sketches are used to encourage examination of desires and motives, and
many techniques described to cultivate reciprocity. For instance, while
there is a 'law' of choice (Chapter III), this can only be made good if
120 On Pornography

individuals prepare themselves by avoiding unhealthy habits ranging from

carelessness in diet to amativeness or self-abuse which ruins partners for
marriage (Chapter IV). Similarly, certain forms of thought, speech, feeling
and behaviour are to be fostered in a domestically organised space of
mutuality: partners should learn to make 'a full and open confession' to one
another if anything occurs 'that appears in the remotest way to disturb the
harmony of married life' (p. 395); a wife should not cultivate a confidante;
a newly-wed couple should exclude relatives from living in the household
in order to establish their own relationship (p. 400); and so on.
Significant here is the fact that knowledge of erotic techniques in the
husband-wife relation is not seen as necessary in order to achieve the goal
of 'perfect sexual love' (p. 48). For Cowan, it is continence which creates
the true bond. This view belongs within a broader framework in which the
physical and the moral are interrelated in a delicate economy of vital forces.
The individual's health depends on establishing harmony of body, mind and
soul in relation to 'Nature's laws' (p. 49). Within this economy, the smallest
physical or moral disturbance can affect the whole self. Sickness of body
and mind follows from 'ignorance of organic laws' (p. 107). Yielding to
sexual appetite, for example, drains the individual's powers and causes
physical ailments, nervous debility and moral decay (pp. 95-107). Mastur-
bation and excessive coition are seen as abuses of the sexual system, a
system in which two principles of the life-force are involved:

First, the semen, which is elaborately secreted from the highest active
principle of the blood of the man, and which is capable of giving life to
a new being, and which, of a necessity, if re-absorbed into the blood of
the individual, is capable, not of giving, but of renewing life. The second
principle involved is that of the nervous system. In the exercise of coition
through the abnormal development of amativeness, a great quantity of
the nervous fluid of the brain is used up. This nervous fluid, when used
in legitimate directions, is in a great measure supplied or vitalized by the
re-absorbed semen, or rather the cells secreted from the testicle before the
zoa-sperms are developed. This being so, the exercise of amativeness
uses up the very life-power of the individual, and in doing this the life-
force of the system is greatly lowered and weakened, laying the body
open to all manner of diseases, contagious, inflammatory and chronic,
insuring an existence weak and sickly, a life a great and miserable failure,
and a death early and painful. (p. 101)

For Cowan, then, the storing of (at this point male) vital fluids through self-
discipline reinforced the whole physical and moral constitution (cf. Elton
 Literary Erotics 121

Boyd, MD, 1877). Some other writers maintained that denial of all sexual
passion was unwise and that its careful expression was necessary to health
(Acton, 1865, pp. 106--28; Fowler, 1870, pp. 637-706). This difference was
only one of degree. There was general agreement that sexual excess was
potentially destructive. According to Cowan, such excess caused a loss of
nervous vital power to be communicated 'through the medium of the great
sympathetic system of nerves' to all muscular departments of the body and
the brain which coordinates them (p. 105). This excess violates physiologi-
callaws and can result even in sterility: only through sensible restraint can
proper mutuality and healthy reproduction be assured in marriage (cf. pp.
368-77).
Turning now to 'Lawrentian' writing, it is evident that the vision of
fidelity which it presents is identified with a supposedly repressed potential
for erotic experience. The perfecting of love and of the self requires indi-
viduals to explore this potential dialectically and seek within themselves a
vital reconciliation between sensuous and moral faculties. Two points should
be made to put the difference between our two instances in perspective.
First, although the Lawrentian celebration of pleasure may seem to be
diametrically opposed to the law of continence found in the earlier work, it
is in fact made possible by and is simply a variant of the economy of the
medically sexualised and pathologised body. Whereas for Cowan, undue
intensity of the sexual act is dangerous (p. 369), for Lawrence it is by not
intensifying sexual acts that one misuses the vital forces and runs the risk of
physiological and psychological damage. Moreover, Lawrence's
pathologising comments on masturbation display his continued reliance on
the medical-moral stigmatisation of improper sexual intensities. Second,
this erotic supplement is itself a specific norm. The incitement to make
erotic mutuality the spiritual hearth of marriage is a late refinement in the
formation of middle-class families around a core of affective relationships
between husbands and wives. These points can be developed by observing
how in the later nineteenth and early twentieth centuries forms of sexology,
closely related to literature, renegotiated what was to count as health and
fulfilment in marriage.
Foremost among these writers was Havelock Ellis, who identified eroti-
cism as a specific capacity of the self. In The Objects of Marriage, he
criticises the view that 'continence is the only alternative to the animal end
of marriage', as one which 'ignores the liberating and harmonising influ-
ences, giving wholesome balance and sanity to the whole organism, im-
parted by a sexual union which is the outcome of the psychic as well as the
physical needs' (n.d., pp. 8-9). The need to balance forces within an
economy of the body is still there, but now entails recognising that physical
122 On Pornography

sex activity 'may prove the stimulus and liberator of our finest and most
exalted activities'. Discovery of eroticism is crucial to the self yet must be
kept in balance with all the creative faculties. For the individual who learns
to make wise use of pleasures, 'a deeper spiritual unity is achieved than can
possibly be derived from continence in or out of marriage'.
The differences between Cowan and Ellis show how mobile has been the
distinction between the use and abuse of sexual capacities. What remains
constant is the sense that any activity delineated in obedience to this
sexological distinction becomes a matter of the conscientious management
of sex, that vital but fragile substance of the self. In Ellis' scheme one must
still keep vigil over one's desires, albeit for a new reason: physical and
psychical fulfilment might be missed in the very place where it is freshly
promised. This kind of liberatory project thus comprises a sharply altered
norm and a novel threshold of expectations, bringing its own pathogenic
concerns with performance. It is not only apparently perverse subjects who
are identifiable as specific temperamental types: sexology dwells amongst
the pleasures of the 'normal' couple where it establishes the 'erotic person-
ality' (Ellis, 1922, Chapter IV). This personality is supposed to possess the
potential for full development of all the faculties according to the familiar
aesthetic dialectic - emotional and intellectual, physical and psychical. It is
trapped neither by instinctual need nor conventional moralisation. This
dialectical construct is synonymous with what, in a further invocation of
Romantic aesthetics, Elli"s calls the 'play function' of sex:

Play is primarily the instinctive work of the brain, but it is brain activity
united in the subtlest way to bodily activity. In the play function of sex
two forms of activity, physical and psychic, are most exquisitely and
variously and harmoniously blended. (1922, p. 132) 12

As a second example of 'scientific' texts on erotic love, we refer to

Theodore Van de Velde's work, influential in marriage counselling for
several decades after being translated into English in the 1920s and early
1930s. 13 In these eclectic writings, notions of unconscious processes,
aggressive and hostile drives, bisexuality and the like borrowed from
psychoanalysis are combined with essentialist notions of masculine and
feminine differences drawn from moral physiology. In Sex Hostility in
Marriage (1931, pp. 41-78), we read that feminine characteristics include
constriction of the conscious mind, expansion of the subconscious mind,
dominant emotional capacity, innate vulnerability, variability of feelings
and a need for violent stimuli, qualities supposed to have an organic physi-
ological basis definable from the moment of penetration of the ovum by the
 Literary Erotics 123

sperm. Masculine characteristics include rationality, logical thought, objec-

tive judgement, egocentricity and a form of kinetic energy which comple-
ments female potential energy and elasticity (pp. 29-40, 80-92). The wom-
an's submissive, emotional nature is to be moulded by the man who realises
her 'sensitiveness and plasticity', her 'maternal instinct' and 'intuitive
understanding of the significance of the sexual act and its results' (pp. 270-
1). Eroticism is a form of insurance, uniting the woman with the man who
has given her the 'love life' (p. 271 ). The perfecting of pleasure, including
'body and psyche, soul and senses', is in turn the 'best guarantee for the
fidelity of the man' and prevents the dominance of mental life which
inwardly threatens masculinity (pp. 271-2). The pattern is of course very
similar to that found in Lady Chatterley's Lover, where the man excites the
woman's supposedly intuitive understanding of sex and her 'maternal in-
stinct' which (in contrast to the earlier medical works we have discussed) is
linked to erotic intensification (Lawrence, 1961, pp. 117-20, 140-1).
Van de Velde assumes that happiness can only be attained by accepting
and maximising feminine and masculine differences and by confronting the
drives not just of attraction but also of repulsion within heterosexuality (p.
291). Thus hostility in marriage 'is a "disease" to which everyone is more
or less exposed' (p. 278). In its milder forms it is part of 'the normal
development of the marriage organism, but is capable in its more serious
aspects of destroying this organism' and indeed of causing 'real disease' (p.
278). This kind of text thus perpetuates well into the twentieth century the
notion that there is a precarious economy of the sexual body and mind,
involving pathologies and cures (the latter now identified as mutual erotic
expression) which sexual 'science' mirrors to the 'normal' couple in their
own domain. What has changed from the medicine of writers such as
Cowan and Blackwell is the emphasis placed on particular elements within
that economy. A reversal has occurred whereby for Van de Velde (or Ellis
or Lawrence) it is the absence or neglect of eroticism which is damaging to
individual well-being and marital relations. Invoking his communications
with 'mental specialists', Van de Velde warns that unsatisfied married
sexual life has 'fatal consequences' for the 'mental equilibrium and mental
health' (1931, p. 269). The 'law of asceticism' is now referred to as
unnatural (p. 270n.): ideal marriage must give sexual passions 'their full
rein' though without infringing on 'the natural moral law' (p. 270). The
distance from the works of Cowan or Blackwell can be measured in the
following statement:

Even although a marriage, based on feelings of love for one's neighbour,

on insight and understanding, adaptability and goodwill, and on union
124 On Pornography

and community of interests, may be a marriage without antagonism, even

a harmonious marriage - it is still not a marriage in the full meaning of
the word. It requires, in addition to all this, in addition to the love as
described by St Paul, sexual love. There is no true marriage without
erotic love, and no ideal marriage unless the practice of sexual love
approach perfection. (1931, p. 268)

If it was deemed essential for this kind of 'science' to explore erotic

meaning fully, so it was also for a certain kind of literature. 14 For Lawrence
and Van de Velde who, in writing, respectively, Lady Chatterley's Lover
and Ideal Marriage: Its Physiology and Technique can both be viewed as
marriage reformers, the so-called suppression of the erotic impulse destroys
the vital forces just as surely as excess wasted the vital fluids in the view of
Victorian physicians. What counts as fidelity has shifted. Being truly mar-
ried now requires embracing the need to know the secret pleasure of sexual
acts. Of course, no one-to-one influence between writers is assumed here.
The purpose of the comparison is to map a broader field of exchanges
between literary and 'scientific' works which allowed them to relay to their
writers and readers particular norms of self-problematisation and self-for-
mation. Between an erotic literature and a literary erotics no sharp line can
be drawn.
The new practice of literary erotics thus made aesthetic capital out of the
investments of knowledge and pleasure in sex which were already develop-
ing in neighbouring fields. Under these circumstances, 'literature' and
'sexuality' happened to converge. There is, however, no necessary relation
between them. A 'D. H. Lawrence' emerges from the contingent linking of
sexual and literary technologies peculiar to modern Western cultures, but
not every culture has to have one.
Literary erotics provided the means whereby those individuals equipped
with the appropriate cultural abilities could construct themselves, through a
detailed, continuous problematising of pleasures, as the subjects of their
own sexuality. The key strategies which it entailed, the sexualisation of a
dialectical work on the self and the transformation of sexual knowledge and
pleasure into an aesthetic form of 'play', can be thought of as techniques of
the body and practices of the self - to borrow key terms from Marcel
Mauss's (1973) anthropology of the body and Foucault's (1986) history of
the soul. That is, they are ways of modelling physical, mental and psycho-
logical attributes which are informed by specific cultural techniques and
social practices.
Seen in this light, literary erotics is a technical and highly specialised
organisation of the body and conscience. Forms of conscience, as personal
 Literary Erotics 125

modes of monitoring conduct, depend upon and vary with definite social
relations and techniques (Hirst and Woolley, 1982, pp. 136-7). The literary
erotics whose emergence we have traced had no exclusive rights over
conscience-formation in questions of sexuality. For instance, campaigners
for 'companionate marriage', contemporaries of Lawrence and Van de
Velde, advocated attitudinal and institutional reforms which would allow a
deliberate 'compromise' of psychological and sexual needs with economic
ones (allowing an alternative to celibacy, the use of birth control and
divorce by mutual consent). They envisaged a form of marital companion-
ship based on calculations of the material security of partners in terms
which would have been anathema to Lawrence, who placed a transcendent
value on sexual bonding (see, for example, Judge Ben B. Lindsey, 1928,
and J. A. Goldsmid, 1934). The 'Lawrentian' forming of conscience was
different from that promoted in household sexual medicine which did not
valorise eroticism. Blackwell had argued against the twin assumptions that
wives who have reservations about how they are expected to experience
pleasure must possess - according to the type-casting of the frigid woman
- 'no sexual passion', and that women are 'more tyrannically governed than
men by impulses of sex' because of their physiological and maternal nature
(1894, pp. 1, 44-53). Even in writers such as Cowan, who were not appar-
ently identified with feminism, there was a concern with rights and spaces,
accompanied by medical arguments that play down the importance of
sexual passion and gratification: a wife was not to be obligated by a
husband's demands.15
Nor did the Lawrentian aestheticising of sex go uncontested. As early as
the 1920s Florence Seabury called into question the characterology used by
Lawrence. The Lawrence of Sons and Lovers, she says, is 'decidedly
neurotic in his fear of the ultimate absorption of man. Woman he describes
perpetually as a great magnetic womb, fecund, powerful, engulfmg. Man he
sees as a pitiful struggling creature, ultimately devoured by fierce maternal
force' (Seabury, 1925, p. 227). For Seabury, the novelist's representations
of male and female difference derive from cultural, literary and psychologi-
cal stereotypes which operate more generally to enforce particular roles in
marriage, including the defmition of women 'in relation' to men, and
the assumed tendency of 'Woman' towards affectivity as opposed to
rationality. Sylvia Kopold (1925) criticises the ideal of comparative vari-
ability of the sexes, an idea much used by Lawrence and Ellis, according to
which the male is prone to extremes of intelligence and genius, and the
female is associated with intuitive stability, average rational powers and the
like. She relates perceived male/female differences of this kind to different
social trainings, expectations and environments, arguing against founding
126 On Pornography

educational or political objectives on such notions. While she does not refer
specifically to literature, her criticisms make clear the limits and partiality
of the sexological knowledges at work in the Lawrentian model of self-
fashioning.
Yet in the decades that followed, Lawrence's project would come to
stand as an exemplary work of sexual self-discovery and aesthetic self-
cultivation. We shall conclude this chapter by analysing how literary sexual
ethics became something more than an uncommon pursuit.

INTO THE CLASSROOM

We have established that using sexual literature to work on the self was
initially an art of living refined by a small minority of writers and readers.
Contrary to the view that writers like Lawrence had to create the public taste
through which they would ultimately win appropriate recognition (Beal,
1961, pp. 11-24; West, 1950, Chapter 10), contemporary forms of literary
journalism made it possible for them to find a limited public for their
specialised adaptation of popular sexual-medical and pornographic materi-
als. A minor industry of small journals and magazines supported esoteric
literary and intellectual movements in the late nineteenth and early twenti-
eth centuries. Such publications helped form and maintain an upper middle-
class audience with a strong sense of itself as a 'circle' distinguished from
middle-class culture by personal taste and social mannerism (such as the
forms of dress and speech associated with the Bloomsbury group) and by a
relative indifference to general public acceptance (Dorothy Baisch, 1950). 16
These publications were in turn dependent on the milieu of the university
arts faculties, which in some cases provided their home and in most cases
supervised the aesthetic training of their readers and writers. 17 The bellettristic
audience existing for the circle of writers to which Lawrence belonged was
already conversant with sexology, sexual medicine, psychology, and issues
of sex reform and ethics. Lawrence read and reviewed works of sexual
'science' such as writings by the psychiatrist, Dr Trigant Burrow (Law-
rence, 1936, pp. 377-82), just as experts in sexology and related fields made
use of literary forms - as is evident in Van de Velde's mixing of Goethe and
'genetics'. Indeed, within these particular circuits of intellectual exchange,
no major distinction seems to have been marked between literary and other
modes of serious writing on sex, since these were all considered to give
access to the central questions and had similar uses as means of inquiring
into the self. 18
It was only in this context of an intellectual subculture that Lawrence
 Literary Erotics 127

could carry out the iterative work of posing problems for other published
writings, formulate solutions and so create a sense of progress by using
literature to investigate sexuality. Thus the novels of John Galsworthy,
initially read as social satires and comedies of manners, were tested and
found pallid by applying the dialectical-erotic method of reading (Law-
rence, 1936, pp. 539-50). Lawrence argues that Galsworthy attempts to
treat his characters ironically by showing them as merely 'social' beings,
'parasites upon the thought, the feelings, the whole body of life of really
living individuals' (p. 543), whose own revolt reduces sex to a pose.
However, according to Lawrence, the form ofGalsworthy's writing is itself
flawed. Sexual emotion is reduced to sentimentalism, 'the working off on
yourself of feelings you haven't really got' (p. 545). Thought is cut off from
sensuous awareness, reducing sex to a clever idea on the part of both the
novelist and, potentially, the reader. In Lawrence's view, serious literary
works could thus commit the same sin as pornography, namely didacticism
- idealising the body for the sake of social ideologies while covertly
goading it into auto-erotic excitement. The challenge was thus to bring
literature into line with the individual's own whole- sensuous and intellec-
tual - experience of sexuality. Of course, the dialectical technique could
support an aesthetic work on the self without requiring univocal judge-
ments. Many readers exercised themselves over whether Lawrence's own
writings succeeded in giving harmonious form to his explorations of sexu-
ality (see for example John Middleton Murry (1932), and the reviews of and
tributes to Lawrence by Murry, T. S. Eliot, Edwin Muir, E. M. Forster and
others in Draper (ed.) 1970). But this concern underlines the crucial point:
initially, Lawrentian writings could make their way in the world courtesy
only of a 'small public of the minority' (Lawrence, 1936, p. 186).
Left to their own devices, those who engaged in literary erotics could
continue almost indefinitely to operate within their chosen and marginal
practice of self-culture. That this is so can be seen from the Lawrentian
discourse sustained through the 1930s and beyond by writers such as
Frieda Lawrence (1934), John Middleton Murry (1932), Anais Nin (1964),
Aldous Huxley (1971) and Lawrence Durrell (1959). 19 In the early 1930s,
Henry Miller began writing a book on Lawrence whose work he saw as
immensely inspiring (Miller, 1985, pp. 11-24). In this book, published
some fifty years after it was begun, Miller predictably speaks of obscenity
as the means of recovering a lost vitality, a vitality he identifies with male
erotic power and its dark sensuality, and with a female otherness which
cannot be grasped through any mere ideology of intellectual and social
equality (pp. 188-90). The radically obscene force of literature, Miller
assures us, strikes against repressive morality and law which still try to
128 On Pornography

make our language betray the truths of sexual experience (p. 176). No
matter how 'passionate' this kind of appraisal might be, however, of its own
accord it could have made little impact on the broader social and legal
regulation of sexuality.
The purpose of Lawrentian literature was not, as has often been
assumed, to spread cultural values broadly and democratically but to
sustain a personalist project of cultural distinction (in the sense proposed by
Bourdieu, 1984). The aesthetic use of sexual literature was a way of
cultivating a prestigious taste and distinguishing oneself not only from
popular entertainments, but from middle-class tastes and manners such as
those associated by Lawrence with the novels of Galsworthy. These other
forms could be deemed to fail, in their own ways, to realise sex, that is they
could be deemed to be insufficiently dialectical. In this differentiation and
distinction there is a confirmation of what Foucault signals as a shift in
middle-class concerns with sex that occurred from the late nineteenth
century. Initially this social stratum was distinguished by acquiring a spe-
cific, sexual body, a 'class' body signifying 'health, hygiene, descent and
race' (Foucault, 1979, p. 124). Once all other social sectors were provided
with a sexual body, bourgeois distinction would be measured 'not by the
"sexual" quality of the body, but by the intensity of its repression' (p. 129).
In the elite practice of literary erotics, the problematic of repression was
reproduced in order to achieve a dialectical expression of true sexuality.
If this art of knowing and shaping the self through using the techniques
of literary erotics was still a localised pursuit amongst the intelligentsia in
the first decades of the twentieth century, the situation was gradually
changing. These techniques of literary sexual ethics were about to undergo
a more general distribution. They would do so, however, not as the cultural
manifestation of the dialectic but as part of an eminently institutional
process in which they were transformed into mechanisms of popular educa-
tion. The governmental use of literature in popular education is analysed in
Hunter (1988, see especially Chapters 4 and 7); we need identify here only
those factors which permitted a new and greatly expanded role for the
technique of self-fashioning elaborated in modem literary erotics.
The aesthetic use of literature and criticism developed in Romantic self-
culture was, in the early and middle decades of the twentieth century,
grafted onto the practices of moral formation already operating in the
popular school and teacher training. Since the mid-nineteenth century, these
practices had been characterised by an exchange between goals of social
regulation and strategies fostering self-expression on the part of the pupil.
The environment of the popular school was constructed in such a way as to
bring the children's real-life interests, sentiments and conducts into the
 Literary Erotics 129

classroom, where their expression would be guided by norms of personal

development and welfare. In this space of 'supervised freedom' (Hunter,
1988, p. 115), the normalising procedure of moral correction was also an
individualising one, through which the child was able to be equipped with
cultural attributes. It was in this context that the discipline of 'English'
emerged. Constituting a special pedagogy, English promoted self-expres-
sion through reading and writing and at the same time made this process a
basis for re-shaping the inner life of the child according to norms publicised
by contemporary psychological and social knowledges. The lynchpin of
English as a pedagogy was the relation in which the teacher was formed as
an exemplary figure for the student, at once sympathetic and distant, com-
bining encouragement and surveillance.
Inducted into the practice of reading taken over from the specialised
Romantic tradition of dialectical criticism, the college-trained teach~r could
encourage and participate in the pupil's affective responses, while allowing
these to be reflected upon and tested against the formal organisation of the
work being read. The text became both a free space in which personal
responses could be elicited, and a powerful instrument for intervening in
and reshaping the sensibility exposed by those responses. The technique of
dialectical reading, once applied by the individual Romantic aesthete to
mould the self, now became the support for an institutionalised pedagogic
relation between teacher and student.
These conditions allowed literary erotics a second mode of existence. No
longer the province of a voluntary (adult) practice, the ethical inquiry into
sexual literature became part of the curriculum, where it apparently offered
a way of taking English even further into the real-life interests of the young
student. Of course, this use of literature did not tap some natural propensity
towards self-expression. Rather, it disseminated through a new channel and
on a new scale an aesthetic capacity to make sexuality central to the
supervised construction of personal identity. Within this pedagogic use of
literature, individuals learn to mediate sexual representations dialectically.
On the one hand, readers are encouraged to identify with the text, and hear
it speaking to their own feelings and curiosities. On the other, they are
brought to appreciate the text's formal mediations of experience, so that
their immediate responses are reflectively deepened and modified.
This pedagogic strategy is at work in many critical texts on Lawrence and
similar writers by the 1950s. It is evident in, for example, Dorothy van
Ghent's chapter on Sons and Lovers in The English Novel (1953), a book
which combines critical essays with a section on 'Problems for Study and
Discussion'. Van Ghent demonstrates how to read the novel dialectically.
Thus, the loose structure of the work is to be appreciated as evidence of its
130 On Pornography

openness to experience. The novel is said to explore - without excessive

refinement and subtlety of technique - what the reader may recognise as
'real problems in life' (p. 245), including the 'organic disturbance' of
sexual polarities and relationships, and the dissociation of intellectual and
social life from 'the natural life-directed condition' of human experience (p.
247). At the same time, however, it must be appreciated that the personal
and autobiographical meaning is dramatically realised by the novel's narra-
tive and poetic form. Van Ghent describes Lawrence's task as follows:

He must make us aware - sensitively aware, not merely conceptually

aware - of the profound life force whose rhythms the natural creature
obeys; and he must make us aware of the terminal individuality - the
absolute 'otherness' or 'outsideness'- that is the natural form of things
and of the uncorrupted person. We must be made aware of these through
the feelings of his people, for only in feeling have the biological life force
and the sense of identity, either the identity of self of others, any imme-
diacy of reality. He seeks the objective equivalent of feeling in the image.
As Francis Fergusson says, Lawrence's imagination was so concrete that
he seems not 'to distinguish between the reality and the metaphor or
symbol which makes it plain to us'. But the most valid symbols are the
most concrete realities. Lawrence's great gift for the symbolic image was
a function of his sensitivity to and passion for the meaning of real things
- for the individual expression that real things have. In other words, his
gift for the image arose directly from his vision of life as infinitely
creative of individual identities, each whole and separate and to be
reverenced as such.
(pp. 247-8, footnote omitted)

We see the key elements of Romantic dialectics reiterated here: the mean-
ing of the work must be realised sensuously and not just conceptually.
Creative form and vision must arise directly out of an experience of the
concrete reality whose inner meaning they reveal. Within this framework,
the reader is called upon at once to identify with the feelings and problems
portrayed and- under the teacher's watchful eye- to interpret these criti-
cally and aesthetically. This eliciting of affective response and corrective
reflection can be seen in the study-guide questions which accompany the
essay:

CHAPTER 7. Do you fmd in the passage, early in the chapter, describing

the swinging in the bam, that the swinging itself provides an image
expressive of the emotional drives with which this chapter ('Lad-and-
 Literary Erotics 131

Girl Love') is concerned and expressive also of the kind of values with
which Lawrence is fundamentally occupied? ... Freud suggests that
children's love for swinging is an early erotic expression. How far would
you say that Lawrence realizes all these associations in the very simple
and natural childhood incident of the swinging in the bam? (pp. 457-8)

CHAPTER 11 ... Why does the affair wtth Miriam bring Paul only "the
sense of failure and of death"? What part in this failure is played by
Miriam's own idiosyncracies of sensibility, and what part is played by
Paul's attachment to his mother? (p. 460)

CHAPTER 12 ... How is the scene of the love-making of Paul and Clara
in the field expressive of Lawrence's positive attitude toward values?
Compare this scene with that in the woods where Paul and Miriam make
love (Chapter 11): is there any difference in the use of the darkness
symbol? (p. 461)

In this aesthetic alternation of identification and detachment, it is made

explicit that 'the criticar approach to literature as a search for the principle
of form in the work' is also implicitly 'a search for form in the self'
('Dedication'). 20
The same pedagogic imperative works through the criticism of F. R.
Leavis. 21 Lawrence's life and work is projected by Leavis as an ideal unity
of sensibility and intelligence:

There is no profound emotional disorder in Lawrence, no obdurate major

disharmony; intelligence in him can be, as it is, the servant of the whole
integrated psyche. It is the representative in consciousness of the com-
plex need of the whole being, and is not thwarted or disabled by inner
contradictions in him, whether we have him as artist, critic or expositor.
It is intensely active in his creative writing: we have on the one hand the
technical originality of the creations, and on the other their organic
wholeness and vitality.
(Leavis, 1955, p. 27)

It is through the work of practical criticism that the reader learns to nego-
tiate immediate responses with the text's 'organic wholeness' (p. 27),
including the interplay of characters, events, images and the formal and
sensuous qualities of the language itself. That the search for form in the text
is also a patterning of the self is evident from Leavis' discussion (pp. 70-2)
of Lady Chatterley's Lover. The question of the text's success or failure is
132 On Pornography
not a matter of 'judgement' - a fact to be known about the book in itself; it
is a means to shape the sensibility of the reader. According to Leavis, this
novel shows a didactic tendency in Lawrence. Even though the work
reflects a 'strong, vital instinct for health' (p. 71) and cleanses the language
and hence physical experience which social custom has made obscene, it
insists too wilfully on its purpose and thus fails to realise fully its vision:

[T]he willed insistence on the words and facts must, it seems to me,
whatever the intention, have something unacceptable, something offen-
sive, about it; it offends, surely, against Lawrence's own canons- against
the spirit of his creativity and against the moral and emotional ethic that
he in essence stands for. (p. 70)

Of course, in Leavis' account the book's partial failure does not mean for a
moment that it should in any formal sense be treated as 'obscene'. Rather,
it is up to readers to recognise the problem of its offensiveness and come to
terms with it for and in themselves. It is they who must measure the gap
between the vision and the realisation, and find the right balance of sensu-
ous immediacy and moral reflection.
This art of sexual-aesthetic reading may therefore be treated as a special-
ised ethos, but one which the reader, like the writer, seems to discover in the
forms of an unfulfilled self, provided the dialectical method is correctly
followed. Reading a book such as Lady Chatterley's Lover aesthetically
becomes an exercise in which certain individuals learn to manage their own
relation to erotica. It is in relation to this practice that the categories of form-
content unity, authorial intention and literary value gain their force in
dealing with sexual materials. Within the aesthetic framework, even the
apparent failures of a text become part of a greater organic whole, because
the dialectical practice of writing and reading builds in the possibility of
always working towards a more fully achieved form of understanding. 22
The same general strategy is found - perhaps surprisingly - in the
tradition of Marxist literary criticism represented by Raymond Williams. In
The English Novel from Dickens to Lawrence (1984), Williams is as in-
debted as Leavis to Romantic historicism, despite a greater sociological
emphasis on the conditions of literary production. Supposedly, while it is
rooted in immediate historical and class realities, literature is also that
transcendent representation of experience and human possibility which re-
unifies art and life, self and society, against the fragmentation caused by
industrial mechanisation. Most importantly, the key to Williams' under-
standing of literature is the technique of dialectical reading which continues
to operate as a pedagogical norm. The reader is invited to approach Law-
 Literary Erotics 133

renee's work as 'a series of advances and deadlocks, and then renewed
advance' (p. 170), in which triumphs and failures are of equal importance.
Hence Lady Chatterley's Lover is presented as a work which challenges the
reader to participate in the always unfinished task of reconciling the im-
pulse towards form with the impulse towards experience in both literature
and the self:

Lady Chatterley's Lover hasn't the scale, the sustenance, of the earlier
novels. In its single and powerful dimension it is still isolated, still
reduced, from the form that had once seemed possible. But it is a positive
flow again, a recovery of energy, a reaching past rigidities, and as such
very moving. That he was still to the end reaching out, reaching out as a
novelist, is profoundly encouraging. It is what we remember and stick to
in and through the difficulties - common difficulties - which his devel-
opment of the novel, his unfinished development, show [sic] us so clearly.
Because it isn't after all an end with Lawrence. It is where in our time we
have had to begin.

(Williams, 1984, p. 184)

In the light of the historical discontinuity which we have indicated

between 'elite' and 'governmental' distributions of sexual literature, what
are we to make of the fact that Lawrence himself wrote on the topic of
education in the schools? Joy and Raymond Williams (1973) see in Law-
rence a prescient figure, discovering 'for the most part on his own' (p. 13)
the central problems in making the education system more humane. Ac-
cording to them, Lawrence sees through the limited existing forms of
instruction to a true form of education: he understands the need to connect
formal learning to the deepest personal awareness in which affective and
intellectual capacities are harmonised, and to foster individuals' own sense
of being by integrating their real life interests within the learning process (p.
7). This biographic narrative is itself organised within the terms of the
dialectical opposition of the didactic and the aesthetic. We might speculate
that Lawrence's own interests were themselves influenced by the teacher
training system to which he was exposed, with its well-established empha-
sis on re-articulating the real-life interests of the child. Certainly, the terms
in which Lawrence writes of popular education are entirely aesthetic. His
'educational' writings are in fact extemporisings within the marginal art of
self-culture. So, for instance, Lawrence writes that the elementary school
system must give each person the 'opportunity to come to his own intrinsic
fullness of being' (Williams and Williams (eds), p. 136). The means of
134 On Pornography

doing so is to explore the natural and spontaneous impulses of the child,

allow self-expression to occur through play, and balance these impulses
with responsiveness to the affective centre of others and awareness of the
life of the mind (pp. 120-94). The realisation of the individual's potential
will be made possible simply by the dialectical reconciliation of mental
learning with physical and spontaneous intelligence (p. 138), the interaction
of the emotional and volitional polarities of individual being (pp. 145--64),
and the mutuality of masculine and feminine impulses within the self and
within relationships (pp. 194-203). It is only because the techniques of
aesthetic criticism and self-criticism underwent a pedagogic reconstruction
and distribution as devices of moral training - and not because of some
prophetic power of Lawrence the individual - that such statements can in
retrospect be celebrated as exemplary.
In summary, then, the educational importance which sexual literature has
acquired in the twentieth century is the outcome of a process in which an
aesthetic technique of self-shaping was adapted and adopted as a practical
method of moral training within the governmental sphere. Initially, serious
sexual literature (which encompassed various genres and crossed bounda-
ries between novelistic, poetic, philosophical, medical and 'scientific' writ-
ing) had a self-formative function for an intellectual minority in the late
nineteenth and early twentieth centuries, prior to any formal institutional
dissemination. Subsequently the techniques of writing and reading associ-
ated with that function became caught up in a very different and widespread
pedagogic distribution. Of course this distribution dealt with matters other
than the use of sexually oriented writing, but it eventually gave a key role
to the literary-critical study of serious sexual literature, especially the novel.
In the 1908 Report from the Joint Select Committee on Lotteries and
Indecent Advertisements, no educationist had argued that access to sexual
literature was necessary if the moral training of pupils and their teachers
was to be completed. Not many decades later, the educational study of
literature became a significant means by which a capacity for individuals to
manage their own sexuality, including their relation to erotica, was distrib-
uted through the official teacher-training system. As we shall see in the next
chapter, this pedagogic deployment of a formerly esoteric literary erotics
made it possible for the aesthetic construction of sexuality to operate as a
new 'infra-legal' norm in deciding the regulation of pornography.
5 Twentieth-Century English
Obscenity Law
TRANSITIONS AND UNCERTAINTIES

Given the unpredictable exchanges that occurred within the pornographic

field from the late nineteenth to the early twentieth centuries, it will be no
surprise that a central theme of this chapter is the historical contingency of
the treatment of art, literary art in particular, in twentieth-century English
obscenity law. Against the mobile background of the never completely
formalised relations between the law of obscenity and the social policing of
pornography, and of the migration of specialist pornography's themes and
figures into the circuits of a more generally disseminated educative fiction
in the guise of ethical techniques for (sexual) self-improvement, our plan is
to review the English Obscene Publications Act of 1959 and the 1960 case
in which the new statute was to have received its definitive construction,
Regina v. Penguin Books Ltd., popularly known as the trial of Lady
Chatterley's Lover. This statute and this trial- the latter held at London's
Old Bailey in October 1960 - are windows on to the uneven regulatory field
within which modem obscenity law has operated.
A principal theme of our discussion of the Hicklin judgement was the
evident certainty with which the court of Queen's Bench handled the matter
of obscenity. This certainty was a function of the relatively stable pattern
presented by the mid-nineteenth century pornographic field. On one side,
pornography was routinely delineated by a set of measures designed both to
police the moral and physical well-being of the popular classes and to
regulate (while in effect intensifying and differentiating by age and gender)
the sexuality of middle-class family members. It is true, as shown in police
comments cited in Chapter 3, that depending on the circumstances and
purposes of its publication and sale, and on the cultural attributes of its
audience, the obscenity - and therefore the regulatory treatment - of the
same work could vary. But this variation was handled as a working norm,
not a cause for constant and profound uncertainty as to the nature of
obscenity. Nor, importantly, was it a sign of middle-class hypocrisy. It
simply meant- as literary theory is only now claiming to have discovered
- that a book is not the same across different contexts of consumption and
use.
On the other side, novelistic literature flowed with no apparent difficulty

135
136 On Pornography

through differentiated audience channels and book-trade networks which

legal - as well as social and commercial - regulation had established and
maintained. Here it is worth recalling that we are dealing less with the
enunciation of a prohibition than the delineation of different channels of
dissemination. For our purposes, three interacting sectors of this system are
of particular importance.
Occupying the centre space - sometimes serialised in literary and 'im-
proving' journals targetted on the different members of the middle class
household and addressing the gamut of social issues and problems - were
the educative novels of Eliot, Dickens, Thackeray, Collins, the Brontes,
Trollope and other writers now considered minor. The general absence of
references to sex in these novels -or its presence only in forms requiring a
relatively specialised sensibility to disinter- is clear enough. On one flank
of this central channel of dissemination was the highly specialised and
esoteric private circulation of 'curious' pornography. Often published by
subscription, this closed circulation coupled the closetted pursuit of the rare
perversity to the bibliophile enthusiasm for the rare publication. 1 While
addressed exclusively to a minority market of wealthy men, this channel
nonetheless witnessed the consolidation of a distinct pornographic literature
in English. On the other flank of the educative mainstream channel flowed
the popular pornography of the street comer. This comprised the residue of
ancient bawdy broadsheets, French and Egyptian postcards, lithographs,
'selections' from the classics in penny part-editions, the whole pile moved
along by cheap printing and a sub-booktrade network of itinerant pedlars,
street hawkers and booksellers centered in Holywell Street in London and
other popular sites.
This picture is of course schematic. In the category of educative and
improving novelistic literature were women novelists and writers of ro-
mances, their works being the object of something like a generic contract
between these authors and their specific readership. Along the axis of
gender further distinctions of audiences could be drawn, extending into the
category of useful publications which included books and pamphlets deal-
ing with sexual medicine and serving as the means of equipping middle-
class families - women in particular - with the means to manage the
sexualities of the married couple and of the child through advice on physi-
ological, moral, hygienic and dietary matters. Such publications - of which
the writings of Drs Elizabeth Blackwell and John Cowan are examples -
relied upon a degree of educated interest and of technical literacy amongst
wives and mothers, although husbands and fathers, as well as children, were
also addressed.
These audiences and these channels of communication evidently over-
 Twentieth-Century English Obscenity Law 137

lapped. Nevertheless, this triple division of the literary field remained

relatively stable through the nineteenth century. Indeed, the outcry and
prosecutions that could follow cases of peddling popular pornography in the
precincts of boarding schools or the criticism of the bowdlerising of early
classics for the broader educative market testify to the strength of these
established boundaries of circulation. 2
By the beginning of the twentieth century, however, this earlier organisa-
tion was becoming unstable. The new instability was due to the unexpected
mutation within the literary field itself, as described in the previous chapter.
A heady cocktail and novel cultural alliance of ethics, sexuality, literature
and pornography emerged. In advanced circles, persons were formed for
whom the right use of sex could now involve the most directly erotic,
indeed the perverse, since this constituted - when transposed into aesthetic
terms - the challenge to be faced and avowed if one was to sublimate the
full truth that could now be attached so uniquely to one's sex. The history
and logic of this specialised cultural practice were outlined in the previous
chapter: the truest sex (and self) is the most hidden. An exemplary literary
demonstration of this logic is involved, we suggested, in the depiction of
anal intercourse in the sixteenth chapter of Lady Chatterley's Lover. Those
equipped with the requisite ethical and aesthetic training were able - and
required - to recognise and read that perverse incident in a way that for
them transposed the sexual into quite another register. Lawrence's readers
thus undertook a specific 'practice of the self' by working through a se-
quence of sexual acts with an increasing flow of biblio-erotic pleasure but
also with a growing mastery of how to deploy this pleasure as the guiding
norm for a guilt-free sexuality and a complete knowledge of one's self.
Readers possessed of these skills - the ability to reconcile the pulsions of
the body and the moral imperatives of reasons - were not, however, of the
social groups routinely touched by the policing of the streets. Rather, they
were the 'little band' of whom Lawrence had spoken. What then is to be
made of the fact that in 1960 Penguin Books printed and warehoused an
initial run of 200 000 paperback copies of Lady Chatterley's Lover? This is
a question we shall attempt to answer later. To do so we first need to trace
the manner in which the sexualising of educative literature threw up a quite
new and unpredicted regulatory problem: how was the law to treat the
'higher uses' of this eroticised material by a minority? This problem,
variously formulated, surfaces as a juridical and jurisprudential dilemma at
successively higher stages of action in the legal network.
It was not only that in the early twentieth century erotic writing and
reading became an essential instrument for a specialist technique of self-
shaping. This technique, together with the culturally distinctive and thus
138 On Pornography

prestigious persona that was its artefact and objective, acquired a growing
audience in the emergent group of teachers and popular intellectuals as well
as a vehicle of dissemination in the university and college arts faculties.
Newly eroticised, like Van de Velde's 'ideal marriage', the educative novel
now began to cross the nineteenth-century boundary to initiate an unfore-
seen and uncertain exchange between the formerly disjunct circuits of
popular obscenity and of the minority genre of specialist pornography.
Confronted with this mutation of the cultural field which it regulates but
of which it is also part, obscenity law retreated from its earlier certainty.
That certainty had been fitting in circumstances where an unquestioned
boundary could be drawn between 'filth' and 'literature' or between the
'perverse' and the 'educative', since these categories were clearly and
materially embodied in different circuits of distribution within the overall
topography of nineteenth-century literate culture. Now, however, porno-
graphic elements which formerly circulated within the restricted but toler-
ated private sphere and which, whenever they might appear in public or
street literature were proper and legitimate targets of policing, began to
appear in potentially large-circulation novels of aesthetic and ethical educa-
tion. This is the origin of the characteristic dilemma and preoccupation of
twentieth-century obscenity law: how to distinguish between art and por-
nography when these appear together inside mainstream educative culture?
In fact the regulatory field too was to undergo an important mutation. As
argued in previous chapters, the policing of the pornographic field had been
organised around the notion of a social pathology and its distinctive medical
norm: the moral and physical harm caused to vulnerable persons by expo-
sure to obscene writings and images. Both obscenity law and the other
policing agencies were oriented to this norm. Without it being a perfect or
complete transition, a shift occurred from a regime of regulation based on
the policing of a social pathology to a regime of regulation organised
around an aesthetic norm.
There are undeniable signs of this shift in the text of the Obscene
Publications Act of 1959. The signs are also there to see in the arguments
advanced by twentieth-century liberal proponents of obscenity law reform
(whose case we consider in the next chapter). With the benefit of hindsight,
it is clear what was always missing in the reformers' programme to shift the
regulation of obscene publication from law to private moral judgement: an
entire population possessed of the ability to use erotica in an appropriately
aesthetic manner and into whose own hands the regulation of pornography
could thus simply pass. This lack, perhaps, was at least intuited by courts
and legislators. As a result, the policing of pornography as a social harm
remains on the agenda in this last decade of the twentieth century, if not
always as a blanket principle, at least as an express concern relating to the
 Twentieth-Century English Obscenity Law 139

protection of certain categories of person from certain categories of work in

certain circumstances.
Our argument should now be clear. If in a variety of ways twentieth-
century obscenity law has recognised the distinctive claims of art and
aesthetic values, such recognition has remained uneven. If an 'aesthetic
moment' occurred around the 1960s- partly commemorated by the Ob-
scene Publications Act 1959 and more completely by the trial of Lady
Chatterley's Lover - today there are campaigns to withdraw from art a
generalised legal immunity. 3
How were aesthetic objectives and norms able to surface inside obscenity
law? To answer this question, we must again draw on the history of the
interactions between law and police, remaining mindful of the distinction
between police-force work with its uses of informal and formal warnings,
confiscations and other summary measures and, on the other hand, the array
of regulatory and management tactics deployed independently of purely
judicial mechanisms, in particular the aesthetic educative programmes whose
objective is to equip individuals to be ethically self-regulating in matters of
sex. A primary objective will be to discuss the relation between the law's
attempt to draw absolute distinctions between the licit and the illicit and a
programme for the pedagogic regulation of pornography, a programme
operating an educative distribution of aesthetic norms and wedded thereby
to a tactic of variable policing.
Instability is built into the 1959 Act by its historical coordinates. Here is
a statute which allows for a work to be obscene yet aesthetic and, because
it is aesthetic, legally publishable on the instrumentalist grounds that the
publication of works of literary merit is in the public good. In short, a work
can be criminally obscene yet publishable in the public good. This is not
only a conceptual instability. From a practical or procedural perspective, the
arrangement established by the Act depends on a hybrid framework of
adjudication combining juries- the commonsense experience of the commu-
nity decides upon obscenity- and experts- a policing according to special-
ist knowledge of aesthetic values.
The 1908 Report from the Joint Select Committee on Lotteries and
Indecent Advertisement had recommended a new consolidated obscenity
statute providing complete exemption from prosecution for books with
literary merit and repute. Along with this automatic exemption for serious
literature, the 1908 Report called for summary jurisdiction for mass-pro-
duced and distributed obscenity. This call is intelligible only in circum-
stances where a distinction between literature and obscene publication
remains largely self-evident.
Seven years after the Report was tabled, Lawrence's novel The Rainbow
faced prosecution under the Obscene Publications Act of 1857. The Bow
140 On Pornography

Street magistrate considering the case did not simply recognise the novel as
something other than an obscene publication. On the contrary, he recog-
nised that the publication met the legal criteria then operative for defining
what counted as an obscene publication, and expressed his concern that a
company like Methuen 'should have allowed their reputation to be soiled as
it had been by the publication of this work' (The Times, 15 November
1915). It counted for nothing that Lawrence himself held to an equally clear
distinction between literature and pornography that would have drawn the
boundary somewhere else; nor- more importantly - that Lawrence himself
concurred in finding pornography morally and physically harmful.
The 1915 episode contributed to the construction of Lawrence as the
exemplary victim of English obscenity law and hero of art's struggle against
that law. In the light of the preceding chapter, however, the picture is
anything but straightforward. Lawrence's works in fact reactivate the im-
agery of pornography, but now transposing it to an aesthetic register where
it becomes the occasion and the means of an ethical challenge to establish
a correct reconciliatory relation between the desire of the body and the
imperatives of reason.
As always in our study of pornography, the essential question concerns
distribution: how were works of Lawrence disseminated? In 1929, Law-
rence's Pansies was published by Martin Seeker. Following an 'open post'
discovery of the work in manuscript, and action by the Home Office, the
Director of Public Prosecutions suggested removal of fourteen of the po-
ems. The publisher complied. Also in 1929, an exhibition of Lawrence's
pictures at the Warren Gallery occasioned the interest of the Metropolitan
Police. A destruction order was duly sought from the Marlborough Street
Magistrates:

Mr Muskett [he had testified to the 1908 Joint Select Committee] ap-
peared for the Crown and St John Hutchinson and John Maude for the
defendants, Mr and Mrs Philip Trotter, lessees of the gallery. St John
Hutchinson maintained that the pictures were works of art. To prove this,
he hoped to call Sir William Orpen, Mr Augustus John, Mr G. Philpot,
and possibly Mr Agnew, Professor Blair, Professor Gleadowe and Mr
Rothenstein.

(St John-Stevas, 1956, p. 105)

What follows in St John-Stevas' report is a typically ad hominem innuendo

of the sort that proliferates in censorship histories of obscenity law:
 Twentieth-Century English Obscenity Law 141
Mr Mead, the magistrate, aged eighty-two, was not impressed by the
distinction of these potential witnesses and excluded them from the court.
'It is utterly immaterial', he said, 'whether they are works of art. That is
a collateral question which I have not to decide. The most splendidly
painted picture in the Universe might be obscene'. On the defendants
promising to close the exhibition the case was dismissed with five guin-
eas costs being awarded against them. (p. 105)

The magistrate concerned himself with the question of whether or not an

obscene publication had occurred and, if so, where. To do this, he applied
an established police test for the recognition of obscenity (is 'the hair ...
clearly shown on the private parts', to recall the words of Chief Inspector
Drew (1908 Report, p. 40)). The hair was indeed there for all to see, thus the
issue was decided. The very use of this 'police' test was itself conditioned
by the public and visual character of the exhibition; that is, by the possibil-
ity of an undifferentiated access, one which meant that the pictures forfeited
the protective 'special audience' categories made available by relative or
circumstantial obscenity. For this reason, once this act of obscene publica-
tion had been established as a matter of fact, there was no cause to make
space in the proceedings for debate on a quite different order of problem:
the character of the representations themselves and, more specifically,
whether they were art or not.
There is one element in this case that suggests a possible alteration of the
norm-based correctional function just described. This is the defence strat-
egy to call expert witnesses to testify that the pictures were works of art.
While these witnesses could not in the event be called to testify, their
presence in the court was a sign that the network of norms, disciplines and
institutions which organised obscenity law was changing. The ascension of
the aesthetic into the legal domain points to a future eclipsing of the truths
of sexual medicine and moral psychology as the organising grounds of the
legal regulation of pornography. The seven 'expert witnesses' convened to
testify that Lawrence's pictures were works of art were not there to say that
the paintings were not obscene. Their evidence was to be that, obscene or
not, they 'furthered the interests of art' and thus served the public good
(Rolph, 1969, p. 83). Despite the possibility of a retrospective colouring by
a liberal reformer such as C. H. Rolph, in a formulation such as this there
is a sign that the hierarchy of disciplines informing the character of legal
judgement might alter if concern for the presence of art could override
questions of social harm and take the centre stage. Of course, in 1929, this
was no more than the sign of a far-off change. The medical-moral test (the
142 On Pornography

'tendency to deprave and corrupt') was and would remain in place, while
statutory recognition of the admissibility of expert evidence on literary
merit was still thirty years away. 4
The case of Lawrence's pictures thus reveals both continuities and trans-
formations in the legal regulation of obscenity at the beginning of this
century. Continuities, in that- still caught between a 'public' metaphorics
of dangerous substances and places and a 'private' pathologisation of the
sexual body - publicly accessible erotic displays remained a recognisable
social harm. Transformations, in that - redeployed as part of an aesthetic
practice of self-cultivation- the same erotica were in the process of acquir-
ing educative and ethical functions and, thereby, pedagogical defenders in
the forms of literary experts and teachers. Moving at a tangent across the
existing boundaries of the pornographic and the educative, establishing new
relations between the harmful and the aesthetic, Lawrence's work is indica-
tive of the unstable space into which in 1959 a new Obscene Publications
Act emerged.

THE OBSCENE PUBLICATIONS ACT 1959

The historical ambivalence of the Obscene Publications Act of 1959 has

already been noted. By retaining the 'tendency to deprave and corrupt' test,
albeit in a somewhat qualified form, the Act perpetuates the nineteenth-
century mechanism which made deviation from a medical-moral norm a
legally sanctionable social harm. Yet even as it does this, the Act also
recognises the new relations between sexuality and serious or educative
literature by making statutory provision for literary and aesthetic merit to
override obscenity. This provision is deemed to protect the public good.
Expert testimony is allowed on the matter of literary merit, but not on the
matter of the obscenity of the publication in question, this being for the jury
alone to decide.
The legislation is thus characterised by an unstable interaction between
the residues of sexual medicine and moral psychology and, on the other
hand, the norms of aesthetic education. This is not the picture of a neat
supercession of the former by the latter, but of a rather messy tension
between continuity and change. Nevertheless, with the Obscene Publica-
tions Act 1959 - which, significantly, Sir Alan Herbert wished to name the
Defence of Literature Act -law about obscenity was for the first time set on
a statutory basis, thus demonstrating the resolve of a Parliament moved, by
the pressures of liberal reform, to put limits on the common law principle by
which English judges could use the law of obscene libel to punish actions
 Twentieth-Century English Obscenity Law 143

which they found contrary to public morality. In this sense it was the end of
an episode in English legal history beginning with Curll' s case in 1727.
There is a certain pleasure at the notion of a statute whose aim was to
protect literary works from prosecution for obscenity being instrumental in
curbing the common law's traditional role of preserving public morality.
More important, however, is the need to describe the hybrid character of the
1959 Act, a character which indicates something of the internal variations
and discontinuities of the regulatory field of obscenity law, divided between
a traditional socio-medical policing and a newer aesthetic and pedagogic
norm of self-regulation. As commentators have observed, when taken to-
gether, retention of the 'tendency to deprave and corrupt' test (section 1)
and inclusion of a new aesthetic test to determine whether publication of the
work is in the public good (section 4) make for historical doubling and
theoretical incoherence. Reviewing the law in the late 1970s, the Williams
Committee found

a widespread sympathy for the idea that works of literary or artistic merit
should not be liable to suppression, but many witnesses were uneasy
about the way the [1959] Act tries to bring this about. Needless to say,
many pointed out to us the assumption embodied in the present law,
which they found extraordinary, that there could be a work which tended
to deprave and corrupt those who read it, but that, at the same time, it was
for the public good that the work be published - as though it was for the
public good that readers be depraved and corrupted, so long as it was by
art.

(Williams Report, 1979, p. 15)

Others have slated the lawmakers for their alleged failure to express in
legislation the 'true' view of pornography and the 'proper' -that is, the
aesthetic - mode of regulating it:

During the legislative gestation of section 1 a carefully elaborated con-

cept of obscenity was wrecked by a misguided affection for a nineteenth-
century formula. The new section 1 was an abortion: it contained one
aspect of aesthetic value (the dominant effect on likely readers) but not
the other (the intrinsic merit). The value of a work was to be considered
from two perspectives, at two artificially but rigidly separated stages, and
courts were debarred from assessing merit when deciding an article's
effect on its likely readers. Instead of one clause enabling a court to
weigh all aspects of the publication in one decision, the two-tier approach
144 On Pornography

set up an illogical and unworkable dichotomy between 'obscenity' and

'artistic merit'. The first stage defined obscenity by reference to the
dominant effect of actual publication on the minds of likely readers, and
the second required a balance of that supposedly harmful effect against
the intrinsic merit of the work, irrespective of the circumstances of
publication. A book's contribution to literature was not a factor in assess-
ing its obscenity, but rather a 'justification' for the publication of a
provenly obscene book. The result was a half-baked decision on 'obsce-
nity' under section 1, and then a halfbaked decision on 'public good'
under section 4, followed by acute judicial indigestion as both commodi-
ties were swallowed at once. The rigid distinction between 'section 2
[sic] effect' and 'section 4 intrinsic merit' committed the law to an
intellectual confusion which contributed more than anything else to its
uncertain and unacceptable operation for the next two decades.

(Robertson, 1979,p. 163)

Rather than mere 'intellectual confusion', the co-presence of the two differ-
ent 'tests'- the medical-moral test for a social harm and the aesthetic test
for literary merit - is the sign that this law was constructed across two
different yet historically overlapping specifications of pornography.
From these two specifications emerged two quite different approaches to
the regulation of pornography. The central issue is to determine how -
compared with the earlier medical and moral test- the new aesthetic test for
obscenity negotiates the relation between law and norm. This relation is
pivotal for any reconstruction of the history of the role of obscenity law in
the regulation of pornography. In Chapter 3, we underscored how law and
police functioned jointly, but not identically, as regulatory apparatuses
which understood themselves to be based on a medical norm - the moral
and physical harm known to be caused by the exposure of the vulnerable
person to obscene material. This norm - transposed into specifically legal
form in the 'tendency to deprave and corrupt' test- cannot be reduced to an
archaic 'nineteenth-century formula'. The test is the product of a complex
but unplanned overlapping of the normative and the legal. In the first
instance, this involved a balancing of the law's relatively undifferentiated
application of the medical-moral norm with that norm's more local and
variable applications in the routine policing of the streets. 5 However, the
'deprave and corrupt' test also signals the persistence of the nineteenth-
century mode of regulating pornography by a medical, moral and hygienic
differentiation and management of individuals and populations in their
different locales. In short, rather than with a 'formula', we are dealing with
 Twentieth-Century English Obscenity Law 145

a network of specialist knowledges, the institutions and agencies through

which they have been operationalised, and the forms of life which they have
made possible.
Can something similar be said of the aesthetic test which gained statutory
existence in the 1959 Act? If so, this would help explain why even in its
new and partly aesthetic orientation the law retains its older component of
harm and condemnation, but with the important difference that harm is now
defined in aesthetic terms as the damage done by 'failed art' to ethically
immature persons. With such a definition, the nineteenth-century medical-
moral sciences give way to the aesthetic, educative and therapeutic disci-
plines which, as we shall show, have constituted the mid-twentieth-century
infra-legal domain to which obscenity law has turned for support.
There is a further qualification. When an aesthetically-oriented commen-
tator such as Robertson (1979) assumes that legal judgement should be
based on 'the intrinsic merit' of the work, is he not in fact seeking to
transmute - into the generality of a law - a local norm which finds its
application in the self-fashioning practised in advanced aesthetic circles
when those equipped with the necessary skills read sexual descriptions as
ethical recipes? Whether or not this is so, the move from the medical to the
aesthetic framework is likely to prove a move from one normative domain
to another, not an escape from norm-based judgement altogether.
The aesthetic test which the 1959 statute introduced into English obscen-
ity law has four key provisions: that the work shall be taken as a whole; that
it shall be considered relative to its effects on its likely readers; that a public
good defence is available for works deemed obscene in fact; and that the
mechanism of trial by jury is foregrounded.

The Work Taken As A Whole

[A]n article shall be deemed to be obscene if its effect or (where the

article comprises two or more distinct items) the effect of any one of its
items is, if taken as a whole, such as to tend to deprave and corrupt.

(Obscene Publications Act 1959, Section 1 (1))

Before 1959, convictions could be secured by citing isolated purple

passages out of the context established by the work as a whole. This tactic
had about it something of the instrumental certainty of the 'pubic hair'
criterion, since the mete appearance of a four-letter word or a single refer-
ence to sexual acts could damn a work. Thus in a 1928 appeal to Quarter
Sessions by the publishers of The Well of Loneliness, Sir Thomas Inskip for
146 On Pornography

the Crown alleged that the 'whole book, as to ninety-nine hundredths of it

may be beyond criticism, yet one passage may make it a work which ought
to be destroyed as obscene' (in St John-Stevas, 1956, pp. 102-3).
The new requirement in the 1959 Act that the effect of the work be
considered only as a whole certainly derived from moves to protect litera-
ture from such selective quotation. The first draft of the Bill in fact required
the Court to consider 'the general character and dominant effect' of the
work. Concern with the essential unity of literary texts, that is with the work
taken as a whole, was a longstanding feature of Romantic aesthetics concur-
rently being reactivated by the New Criticism. It was not, therefore, a
simple widening of the scope of evidence that was in question; it was the
admission of a new kind of expertise to the ritual of judgement.

The Work Considered Relative To Its Effects On Its Likely Readers

[P]ersons who are likely, having regard to all relevant circumstances, to

read, see or hear the matter contained in it . . .

(Obscene Publications Act 1959, Section 1 (1))

With the new statute, arguments that a work was inherently obscene became
statutorily inadmissible since obscenity was now recognised to be relative
to a definite category of persons, that is 'persons who are likely ... to read'
the article. For Robertson (1979, p. 55), the 'need to ascertain the target
audience in prosecutions under the 1959 Act effects the most important
shift in emphasis from the common-law definition, which looked not to the
likely readership, but to the impact of the article on the most vulnerable
members of society'. In fact something of a modem myth is at work here.
In Chapter 3, we argued that obscenity has been relative from the start. As
for the nineteenth-century pornographic field, the fact of different channels
of dissemination, different sites of sale, was taken to be relevant to the issue
of the obscenity or otherwise of publications. Moreover, by virtue of price
or mode of marketing, potentially obscene works could be deemed not to be
directed at the 'most vulnerable'. As such, they were in effect declared non-
harmful relative to their specific destinations and circumstances of use. In
other words, 'most vulnerable' carried both an inclusive and an exclusive
sense. Sensitivity to the differentiation of cultural milieus and their
populations was not, therefore, lacking in the nineteenth-century policing of
pornography. In 1868 the Hicklin judgement had recognised the differential
organisation of legal-cultural space, The Confessional Unmasked being
'sold at the comers of streets'. Or again, to repeat the exemplary police
 Twentieth-Century English Obscenity Law 147

optmon expressed in 1900 on the circumstances of circulation of the

Heptameron: 'If it had been in a library to which students had access, no
one would deny that the book was properly there and properly kept for a
proper use'

A Defence Of Public Good, Providing For Expert Evidence To Be

Given On Artistic, Literary And Scientific Merit.

(1) A person shall not be convicted of an offence against Section Two of

this Act, and an order for forfeiture shall not be made under the foregoing
section, if it is proved that publication of the article in question is justified
as being for the public good on the ground that it is in the interests of
science, literature, art or learning, or of other objects of general concern.
(2) It is hereby declared that the opinion of experts as to the literary,
artistic, scientific or other merits of an article may be admitted in any
proceedings under this Act either to establish or to negative the said
ground.

(Obscene Publications Act 1959, Section 4)

The dual requirement that a work be considered as a whole and relative to

its likely readers is the concrete mode in which an aesthetic criterion
establishes itself within obscenity law. With the provision for a defence of
public good and for expert literary testimony, this new deployment of
aesthetic norms confirmed its juridical standing. 6 This was a striking ad-
vance for aesthetic pedagogy into territory previously held by the moral-
medical disciplines.
There had been earlier signs of movement in this direction. However,
back in 1928, the prosecution of Jonathan Cape for publication of The Well
of Loneliness gave warning that expert testimony was admissible only
where artistic merit is concerned. On the prior question of whether the
prosecuted work has a tendency to deprave and corrupt, expert evidence is
not admitted, at least in theory, since this is the question of fact that only the
magistrate or jury can decide. According to the 1959 Act, it is for expert
witnesses to tell a jury that the work before them - once its obscenity has
been established - is highly valued by the literary establishment, if such is
the case. Socio-psychological researches into the effects of pornography on
readers - for instance research showing or disproving correlations between
exposure to sexual writing and criminal behaviour, or research arguing for
some form of therapeutic benefit - have typically been excluded from both
the legal determination of fact and the public good determination. Matters
148 On Pornography

are thus arranged so as to preserve the jury's role in deciding the question
to which Section 1 of the Act is directed: does the work have a tendency to
deprave and corrupt a certain category of reader? Psychological and socio-
logical researches into pornography's alleged causal powers - or lack
thereof- have served to sustain the debate, not to terminate it, as we shall
see in later chapters.

The Role Of The Jury

The 1959 Act foregrounds the function of the jury in obscenity trials. What
for the Obscene Publications Act of 1857 was a point of distant recourse-
the ceremony of trial by jury - moved to centre stage in the mid-twentieth-
century legislation, bringing with it an archaic ritual for staging community
judgement. The mix of contemporary aesthetic expertise and jury trial
ceremonial is a sign of the patchwork character of obscenity law in general
and of the 1959 Act in particular.
For some, the jury is the appropriate agent to decide obscenity cases,
given that the matter is one of the community standards. For others, such a
preference is anachronistic, as indeed is the whole conceptual edifice of the
1959 Act with its reliance- through the jury mechanism- on vague entities
such as 'community standards' and folk beliefs which can neither rationally
know nor themselves be rationally known: 'At the outset, one is faced with
an archaic statutory definition, perhaps even an archaic basic concept, and
a cumbersome law which prevents the reception of evidence which would
undercut the very basis of the provisions themselves' (Bates, 1978, p. 264).
The tension between jury and expert underscores the point hat obscenity
law has been stretched, in historical terms, across the distance between law
and norm. In the nineteenth century the norm in question is medical and
moral in character. For the 1959 Act, the norm towards which part of the
law is oriented is aesthetic, even though the older medical-moral norm is
not yet fully displaced.

THE TRIAL OF LADY CHATTERLEY'S LOVER

Though both were 'test cases', the 1960 prosecution involving D. H. Law-
rence's Lady Chatterley's Lover displays certain differences from the nine-
teenth-century case concerning The Confessional Unmasked.? First, the
more recent case involves a serious literary work. Second, in 1960, the
court's attention was directed centrally to the issue of the redeeming aes-
thetic character of the work in question. In Hicklin, the concern was whether
 Twentieth-Century English Obscenity Law 149

or not an act of obscene publication could be said to have taken place, given
the publisher's and seller's 'good intentions'. Third, the Penguin case
received the full ceremonial of trial by jury. Obscenity was to be the focal
point of a national ritual in which the community would be invoked -
juridically - to speak on the limits of sexual expression in that national
culture.
These differences are in part related to the exchange which had taken
place between the genre of the educative novel and that of pornographic
fiction, and to the subsequent deployment of erotic writing for pedagogic
uses. Between the time of Hicklin and that of Regina v. Penguin Books Ltd.,
the character of novelistic truth and its use in the education of the self had
radically altered. It is therefore worth recalling the medical and porno-
graphic origins of Lawrence's literary personages, including his sodomitic
lovers, and the aestheticisation of such figures for the purposes of a special-
ised ethical exercise. The law too, at least to an extent, had prepared itself
to deal with this new mode of serious educative literature. The preamble to
the 1959 Act explicitly records as one of its three objectives: 'to provide for
the protection of literature'. This objective is to be realised by the provi-
sions just discussed: the work is to be considered as a whole; the work is to
be considered in relation to its likely readership; a public good defence can
be offered - based on testimony by literary experts - which, if successful,
would override the fact of the work's obscenity.
Our account of Regina v. Penguin Books Ltd. will stand somewhat apart
from the predominant approach to the trial. 8 This treats Penguin Books'
acquittal as a landmark in the liberalisation of literary representation of
sexuality, a 'turning point in the fight for literary freedom' (Robertson,
1979, p. 128). As such, the trial has been celebrated as a sign of the
maturation of British Society, a triumph of the jury system and the (British)
vox populi (Morpurgo, 1979, pp. 318-9). Given this approach, the trial has
become the object of anniversary celebrations, including a dramatised re-
construction for television. However, this happy approach has not been
shared by another, predominantly feminist, viewpoint. Indeed, as we shall
show in Chapter 7, many feminists have seen the processes and judgements
of obscenity law as legitimating and protecting sexist representations of
women - including the male tradition of erotic and emancipatory writing
within which Lawrence's works have been canonised, and where only
sexist (rather than sexual) representations have been formed. For our part,
neither celebrating nor denouncing obscenity law, we shall attempt to
describe its shifting coordinates as these are revealed in the 1960 trial,
paying particular attention to the aestheticisation of the law, and to the
tensions which result for the specification of obscenity.
150 On Pornography

One new coordinate, as we have seen, is the requirement that the work be
'taken as a whole' and not in de-contextualised extracts. With this require-
ment, the court becomes the site of competing readings of the work, and
must draw the boundary of pornography and literature by determining the
character of the publication as a whole. This is a far cry from identifying
deviations -the public display of pubic hair or the public utterance of taboo
words- from a known and well-practised medical-moral norm. Just where
such a boundary could be set had become uncertain, above all in the
circumstance where a publisher would print, and be ready to distribute,
200 000 copies of a work such as Lady Chatterley's Lover. According to a
Penguin spokesperson, it seems that the 'classic' status which had posthu-
mously descended on Lawrence, the fact that the work contained no words
that had not been previously and freely published, and the becoming law of
a Bill explicitly for the protection of literature led the company to suspect
nothing by way of imminent prosecution (Morpurgo, 1979, pp. 316-17).
As to the procedural guidelines that organised the trial, the provisions of
the 1959 Act meant that it was for the prosecution to prove the work
obscene, and for the defence to prove that - even if obscene - the work has
a redeeming literary merit which justifies its publication as being in the
public good. As to the level of proof required, Gerald Gardiner for the
defence put it as follows:

[W]here the Prosecution has to establish something in a criminal case the

burden which rests on them is to satisfy a Jury beyond reasonable doubt:
where the Defence have to discharge some burden of proof it is a lesser
burden, it is the burden of satisfying a Jury on a mere balance of
probabilities.

(Rolph, 1961, p. 175)

The two issues of obscenity and public good thus required different stand-
ards of proof. The 1960 trial also departed from the order of speech usual in
criminal trials, allowing the defence to open before the jury retired to read
the book, rather than having heard only the prosecution's opening and
presentation of supporting evidence. This pattern has been followed in
subsequent obscenity trials.
There were also important rulings on evidence. To an extent, these
rulings defined the scope of the expert testimony on the 'literary, artistic,
scientific or other merits' of the article. In the strict sense, the Act allowed
expert testimony only on these 'merits'. In practice, the conduct of the
experts led the judge, Mr Justice Byrne, to attempt some general points on
 Twentieth-Century English Obscenity Law 151

conditions for evidence about the public good and about the obscenity of the
work in question:

[E]vidence can be called, quite plainly, by the defendant- expert evi-

dence as to the literary merits of the book- but those witnesses cannot be
asked to solve the question as to whether publication of the book is
justified as being for the public good. That is a question for the Jury and
not a question for witnesses to determine. (p. 112)

The Judge further ruled that the experts could not testify on the matter of
whether or not the work was obscene, that is, whether the book had 'a
tendency to deprave and corrupt ... those persons who are likely, having
regard to all relevant circumstances, to read, see or hear' the matter
contained in it. That too was an issue which the jury had to determine for
itself. Further limitation was on the scope of expert testimony: experts could
not advise on the calculation to be made when literary merit is balanced
against obscenity. Expert testimony is therefore inadmissible on the
comparative obscenity of the work in question. Reference to other works
found obscene is not allowed, nor to the intention of the author not to write
an obscene work. On the other hand, expert evidence on other works and
authorial intention is permissible provided that it relates to literary merit. In
short, as the Judge indicates in his summing-up, the evidence of obscenity
is 'the book itself', not the testimony of experts (p. 202).
The logic of these rulings is clear enough, and certainly they provide a
formal definition of the limitations of the expert testimony and of the area
of the jury's responsibility. In practice, the judge failed to impose these
limitations. Given the terms of then current literary critical discourse and
the apparent urge of those who spoke as literary experts to speak of every-
thing, this failure was perhaps inevitable. Less so was Mr Justice Byrne's
failure to impose a two-stage judgement, as required by the Act, whereby
first a decision is reached as to the obscenity of the work, the matter of its
possible literary merit only then being made an issue of determination by
the court.
Evident difficulty confronts a jury which has to judge the character of a
work as a whole representation and classify it as obscene and suppressible
or obscene but publishable in the public good, all the time adjusting the
precise placement of the boundary between pornography and art. Little
wonder that the court became a literary seminar where aesthetic pedagogy
takes on the full weight of the judicial ritual: 'Long passages were read out
... in a court which was hushed by the sheer strength, previously unrecog-
nised by many now listening, of Lawrence's writing' (p. 84). This is not an
152 On Pornography

activity for which the jury is necessarily equipped, yet it is the jury that must
negotiate the exchange between norm and law, without ceasing to speak for
the community who condemn and punish, or exculpate.
The aestheticisation of obscenity law can be directly traced from the
forms of argument preferred by the 'thirty-five distinguished men and
women of letters, moral theologians, teachers, publishers, editors and crit-
ics' called by the defence (p. 4). Some but by no means all of the experts
could claim an institutional status by formal membership of an accredited
'corps' of academic specialists; others lacked an institutional guarantee of
this sort. Aided by the judge's failure to insist upon a strict prior determina-
tion of the work's obscenity, their testimony- supposedly on the literary
merit of Lady Chatterley's Lover- slipped irresistibly into assertions of its
non-obscenity.
It is appropriate to ask just what is the specialist 'knowledge' that we call
literary expertise. Indeed, although habitually depicted as a buffoon by
liberal celebrants of the case (Rolph, 1961; Morpurgo, 1979; Robertson,
1979), the Prosecuting Counsel, Mr Griffith-Jones, posed the question of
what such experts 'know' in a way that was not buffoonish. His cross-
examination of Anne Scott-James makes the point:

'Please don't think that I am being rude about this. You run, do you not,
or are responsible for, the ladies' page in some newspaper?'- 'No.'
'Or were?'- 'Some time ago, yes. Ladies' page is not the phrase we use
now. It is very old fashioned; it has not been used since 1927.'
'Fashion page?'- 'Women's page, not fashion.'
'Called?'- 'It was called "Anne Scott-James's Page".'
'Is that what you run now?'- 'No, I am a freelance writer now.'
'Still on that type of subject?' - 'Writing about family problems and
children, mostly, and controversial topics of the hour.'
'I only have this question- as I say, please don't think I am intending to
be rude, but evidence as to the literary merit of this book is confined to
experts- I only wondered, do you claim any particular qualifications to
be a literary expert?' - 'I think I do, yes.'
'What?'- 'Of a popular kind.'
'What?' - 'Well, I was a classical scholar at Somerville College, Ox-
ford.'
'Not every classical scholar at Somerville College, Oxford, is a literary
expert?' - 'No. It isn't a negligible qualification though.'
'I couldn't agree with you more ... '- 'I was brought up in a very literary
family.'
'But apart from the qualifications you have mentioned, you have no other
 Twentieth-Century English Obscenity Law 153

qualification such as might put you in the category of a literary expert?'

- 'Not the same as a reviewer has, no.'
(Rolph, 1961, pp. 102-3)

So, what is it that allows an Anne Scott-James to speak as an 'expert' on

literature? How can Cecil Day-Lewis, speaking as a 'literary expert', com-
ment on what an 'averagely sexed woman' is like (p. 134)? What equips a
twenty-year old Cambridge English graduate, just beginning her first novel,
to comment on 'industrial civilisation' (p. 150)? What precisely qualifies a
witness to know that Lady Chatterley's Lover demonstrates 'all that makes
sex human' (p. 172)? Many other such formulations could be cited, all the
while with the reminder that those statements were made under the rela-
tively strict and formal conditions for expert evidence as to literary merit
given under Section 4 of the Obscene Publications Act of 1959.9 And even
where the expert has the credential of an academic post in a university
department of English, we cannot help wondering just what it is that allows
a literary critic - Raymond Williams - not only to be asked but also
unhesitatingly to answer a question such as the following: 'It has been said
that these descriptions are always emphasizing pleasure, satisfaction and
sensuality. Do you agree that that is wrong, in a true sexual relationship
between two people on a permanent basis?' (p. 117). When aesthetics and
literary criticism were in effect being granted statutory standing as legally
recognised expertise by the 1959 Act, it is unlikely that questions were
asked as to the precise content of and qualifications in this 'knowledge'. It
is even more unlikely that they could have been answered. What was
ynvisaged was doubtless someone able to furnish objective and authorita-
tive evidence as to the standing and merit of a work, not a band of individu-
als who without a moment's hesitation would testify as expert on the
'deadness' of industrial civilisation and on the 'sensibility' of the 'aver-
agely sexed woman' .1°
We must remember the novelty of the circumstances of the 1960 trial, in
which considerable expectations of a new cultural order were invested by
many of those involved. With the admission of the testimony of literary
experts, together with the full ritual of trial by jury, the courtroom became
the site of a definitive contest between competing claims to know the nature
and effects not only of obscenity but also of works of literary merit. What
the court in fact received was not a set of statements drawing on an expert
knowledge. It was, rather, a vivid practical demonstration of how to be a
full-blown aesthetic personality, a demonstration of the use of aesthetic
techniques of ethical self-fashioning, including a stunning capacity to poeti-
cally deepen any sexual description, however pornographic.
154 On Pornography

A battery of interpretive procedures was deployed by the witnesses. First,

there was placement of the work in the authorial ceuvre. While Section 2(4)
of the 1959 Act specifically excludes evidence for or against the work in
question that makes reference to other obscene publications, it was ruled in
Penguin Books that on the matter of literary merit other works could be
referred to as evidence. Thus the literary experts had recourse to the syllo-
gistic procedure of citing other works by Lawrence, establishing a Law-
rence ceuvre, then placing Lady Chatterley's Lover in it. Raymond Williams,
for example, testified that Lady Chatterley's Lover 'is one of Lawrence's
four major works, the others being the three novels Sons and Lovers, The
Rainbow and Women in Love. I think Lady Chatterley's Lover is clearly a
book of that substance and would be ranked with those other three' (Rolph,
1961, p. 133). This representation of a Lawrence literary ceuvre and the
placement therein of Lady Chatterley's Lover appears to have functioned
successfully as a means of retrieving the novel from an alternative obscene
Lawrence ceuvre of banned works and damaging anecdotes about the au-
thor's personal life. This cultural ploy had already found its commercial
counterpart in Penguin Books' plan to publish the paperback edition of
Lady Chatterley's Lover, along with the other Lawrence novel- Women in
Love- not previously issued by them, in the form of a Lawrence 'million':
ten titles each printed in 100 000 copies. Publication of these titles on this
scale is, in demographic terms, an index of the vastly expanded educative
and curricular use of such literature. 11
Second, the work was placed in the canon of great literature. This proce-
dure involved invoking or constructing a canon of the major works and
authors of English literature as the proper setting for the Lawrence ceuvre,
now including Lady Chatterley's Lover. During the trial, the jury -through
the mediation of work in questions - thus found itself in the presence of the
Bible, The Canterbury Tales, Hamlet, Paradise Lost and Ulysses. In the
sphere of authorial signatures, Lawrence was joined to Hardy, George Eliot,
Austen and Fielding (Rolph, 1961, p. 67); Hardy again, and Conrad (p. 75);
Bunyan and Blake (p. 99); Galsworthy and Bennett (p. 136); Woolf, Joyce,
Conrad again, and Forster (p. 139). Alongside the litany of signatures,
another procedure involved the representation of a patriotic cultural 'tradi-
tion' into which Lawrence and his novel could be placed. For Richard
Haggart (pp. 99-100) 'the tradition of British puritanism' does service,
although of course without the slightest reference to the complicity of
Puritanism and the intensification of personal and erotic concerns to which
we have referred. That these canonical allocations have no universal truth is
demonstrated by the quite different canon in which the same novel gets
placed in histories of obscenity, not in the class of works signed 'Law-
rence', nor in the great 'tradition of British puritanism' but alongside other
 Twentieth-Century English Obscenity Law 155

obscene publications: Venus in the Cloister, The Lustful Turk, The Confes-
sional Unmasked, Lady Bumtickler' s Revels, The Quintessence of Birch
Discipline, and so on. The content of the canon appears to vary with the
purpose of the canonisation (Saunders, 1982).
A third procedure involved the investment of authorial intention. The
question of intention has exercised both legal and literary fields. We have
already noted the limited conditions under which the 1959 Act admits
evidence of authorial intention. In fact, a retrospective calculation of likely
effect is the crucial factor. Once the effect of the work - a tendency to
deprave and corrupt the persons who are 'likely ... to read, see or hear the
matter contained in it' -is established as fact, the intention to produce that
effect is necessarily inferred. In the case of obscene publication, a limit is
thus set to the usual requirement in criminal law to establish intent or mens
rea as a crucial component of the crime (Smith and Hogan, 1972, pp. 569-
72). Furthermore, this limit is set by a legal calculation of the socio-ethical
effect of the work's dissemination which is quite unconcerned with the
originary state of the author's soul or sensibility. In other words, criminal
liability for obscene publication is a determinate artefact of legal reasoning;
it neither derives from nor coincides with the literary hermeneutic proce-
dures used to generate authorial intentionality as this is commonly under-
stood in the sphere of literary studies.
Given the centrality in literary critical practice of the argument from
authorial intention, the literary experts fail to surprise us by their reflex
recourse to accounts of Lawrence's intention. Judge and Prosecution proved
unable to curtail statements of this sort: 'neither in intention or effect is this
book depraving' (Rolph, 1961, p. 64). Though inadmissible, such state-
ments were a staple means of claiming the work for literature by investing
sexual depictions with an authorial intention to have them serve a variety of
laudable moral and aesthetic purposes, for example to assist 'the redemp-
tion of the individual, and hence of society, by what Lawrence calls "reci-
procity of tenderness"' (p. 129). The imponderable relation between a
calculation based on authorial intention and one based on social effects was
left for the jury to decide.
Fourth, there was the procedure of poetic deepening, or allegorisation.
The performance of allegorical readings allowed the experts to say what
Lawrence really said in the novel. By allegorisation, depictions of sex were
cleansed of any depraving and corrupting tendency and rewritten in terms
of immaculate moral purpose. Rebecca West thus demonstrated to the court
how to recognise thirteen detailed descriptions of sex as moments in 'a
return of the soul to the more intense life' (Rolph, 1961, p. 67), this
demonstration being sealed by reference to a founding intention whereby
Lady Chatterley's Lover was said to have been 'designed from the first as
156 On Pornography

an allegory'. The Prosecution in closing gave the following account of this

procedure:

Miss Rebecca West ... was asked about the book and gave, you remem-
ber, a number of rather long answers to the questions that were put to her
... 'The idea that the story is padding cannot be true; as a matter of fact
the book has that story because it was designed from the start as an
allegory. Behind the book the allegory which he intended was that here
was a culture that has become sterile and unhelpful to man's deepest
needs, and he wanted to have the whole of civilization realizing that it
was not living fully enough, that it would be exploited in various ways if
it did not try to get down to the springs of its being and live more fully,
and bring its spiritual gifts into play. The baronet and his impotence are
a symbol of the impotent culture of his time, and the love affair with the
gamekeeper was a calling, a return of the soul to the more intense life that
he felt when people had had a different culture, such as the cultural basis
of religious faith.' I have no doubt [commented Griffith-Jones] that with
the learning and reading that lies behind Miss Rebecca West she is
capable of reading all that into this book, but I ask you, is that typical of
the effect that this book will have upon the average reader, and all the
more, the average young reader? Are they really going to see an allegory
in the thing?

(Rolph, 1961, pp. 188-9)

These questions too are for the jury to determine. But are there limits to
such allegorisation? Or could no sexual depiction resist this aesthetico-
ethical procedure of interpretation? Could such poetic deepening be at-
tached to the specific depiction of the episode of anal intercourse between
Mellors and Connie Chatterley? The Prosecution recognised the episode as
perverse and obscene, and read it out (p. 195), but the act, was not directly
named. Rolph observes that 'this unexpected and totally unheralded innu-
endo visibly shocked some members of the Jury' (p. 195). Would the literal
naming of what might still have registered as a perversion have triggered
that not entirely superseded machinery founded on the medical-moral norm
and preserved in the 'tendency to deprave and corrupt' test for obscenity?
None of the expert witnesses demonstrated how to read a description of anal
intercourse as an exercise in ethical self-completion. The courtroom, it
seems, was not yet a sufficiently aestheticised locale for this to be done with
composure.
The exculpatory allegorising skill in question is, of course, the property
 Twentieth-Century English Obscenity Law 157

of a special category of persons, and not evenly distributed across that

general community for which the jury speaks. Once the 1960 case was won
-but perhaps only then- even those liberals who celebrated the decision to
acquit Penguin Books as a triumph of the vox populi can be found proposing
that obscenity cases 'should be tried only by ascertainably literate jurors',
and asserting that 'since the introduction of "expert evidence" in obscenity
trials it has certainly become apparent that an ordinary jury is not the best
tribunal to determine the future of English Literature' (Rolph, 1969, p. 11).
The proposal by John Calder, publisher of Last Exit to Brooklyn which was
condemned at the Old Bailey in 1967, is particularly notable, given the
pedagogical dissemination of the aesthetic use of pornography:

In the new climate in which publishers and writers now find themselves,
where highly complex literary concepts will be argued out in criminal
courts, it is essential that the framers of the Obscene Publications Act
should bring in a new provision that enables juries to be selected from
those who have at least A-levels in their education and can show that they
are capable of reading and understanding the book they have to judge.

(in Rolph, 1969, p. 111)

Such notions of a 'special' jury and a 'special' literacy- both of course

to be formed by the aesthetic discipline we have described - directly
underscore the relative character of obscenity as recognised in the provision
in section 1( 1) of the 1959 Act concerning the 'likely' readerships of works
in question. In keeping with this provision, in the 1960 trial, the Prosecution
attempted to construct a particular readership for the work, referring to the
'average reader' and - more specifically - to the 'average young reader'.
These categories lean backwards towards Hicklin but also forwards towards
notions of 'variable obscenity' which we shall consider in Chapters 6 and 7.
The grounds signalled for this tactic were Penguin Books' popular pricing
(at 3s 6d) and massive print run in paperback. The Defence follows much
the same tack, but trying to evade the problem of the moral vulnerability of
the likely mass audience unskilled in ethical allegorisation of sexual de-
scriptions. The reputation of Penguin as publisher of works of value at
prices all literate persons could afford is emphasized:

[I]n a work published at 3s. 6., you are to consider the question in relation
to the general public and not some particular section. It is of importance
that you should remember the former definition - and I mention this
because again this is one of the things read out to you in opening - the
158 On Pornography

former definition which in addition to the words 'deprave or corrupt

those into whose hands the work may fall', used the words 'and whose
minds are open to such immoral influences'. Those words have been
expressly and carefully omitted by Parliament from the new Statutory
definition, so we are not to consider some particular type of person or
particular group, but the general public.

(Rolph, 1961, pp. 176-7)

A problem arises here. The 'persons likely' clause of Section 1(1) was
added as a limiting condition to assist in the protection of literary works.
Certainly this is how commentators, for example Robertson (1979, pp. 54--
9), have considered it. A clue to the Defence thinking is provided, however,
by Rolph's editorial footnote to the passage cited: 'Neither the Judge nor Mr
Griffith-Jones made any reference to this ingenious interpretation which, by
logical extension would enable all the more esoteric obscenities to be sold
at the lowest possible prices' (Rolph, 1961, p. 177n. ). The logic in question
would seem to be commercial.
In Regina v. Penguin Books Ltd. the success .of the several literary
procedures employed by the Defence witnesses cannot be inferred from the
fact of acquittal, since it was not made clear whether the work was found to
be not obscene, or found obscene but redeemed by literary merit. In fact, by
the following decade, this distinction was itself on' the way to becoming
unthinkable. In 1979, the Williams Report would propose that the boundary
between art and pornography be drawn in such a fashion that any written
work, whatsoever its contents, would be immune from criminal prosecu-
tion, the whole regulatory apparatus having shifted such that it would in
large part no longer involve the criminal law. Such proposals -exposed
further in the next chapter- are additional signs that the medical-moral
machinery established in the nineteenth century is losing power. In its place
arises the aesthetic-pedagogical approach to the policing of pornography.
As an application of the Obscene Publications Act of 1959, the 1960 trial
of Lady Chatterley's Lover shows this aestheticisation of the law under
way. An aesthetic specification of obscenity now confronts the jury. But
this new specification awkwardly overlaps the older - more habitual and
commonsense- medical-moral specification of obscenity as a social harm
directly threatening the vulnerable and, in consequence, as something to be
punished rather than managed or treated. The 1959 Act and 1960 trial are
properly described as hybrid and transitional cultural arrangements because
they embody the tension between a hygienic and an aesthetic approach to
the policing of pornography.
 Twentieth-Century English Obscenity Law 159

POLICED BY ART

In the next chapter we shall consider reformist arguments that the law
should not concern itself with pornography, since what an individual reads
and watches is properly a moral not a legal matter, a private not a public
affair. The emergence of such arguments, in which what we have termed
aesthetic pedagogy takes on the role of handling pornography without need
of juridical buttressing, might seem to indicate a pure gain to aesthetics, as
if the tension and ambivalence of the 1959 Act were well on the way to
resolution. However, the exit of erotic expression from the field of legal
regulation is not quite so straightforward.
In Chapter 3 we suggested that obscenity law's channelling of esoteric
specialist pornography was a constitutive factor in the nineteenth-century
literary field. In effect, the law contributed directly to the threshold which
Lawrence - along with so many subsequent avantgarde aesthetes - claimed
to transgress in the name of art, sex and truth. If erotic writing is
decriminalised, no latter-day Lawrence could repeat that gesture. As the
criminal law approaches a point of announcing its indifference to whatever
writers write, because nothing written would meet the new 'non-art' or
'failed art' criterion demarcating literature from pornography, will
avantgardes - mindless of the new role of aesthetic norms - continue to
proclaim that all authentic literature is transgressive of law?
There is a further problem in assuming a pure gain to aesthetics and an
absolute reduction of regulation. A theme of our later chapters is the ethical
and disciplinary character of the aesthetic. It is precisely this, after all,
which is demonstrated by witness after witness instructing the court in
Regina v. Penguin Books Ltd on how to discipline the self by confronting
the secret truth of sex and how to discipline sex by remembering, for
instance, the 'tradition of British puritanism'. In this sense, the trial pre-
sented a powerful gallery of aesthetic disciplinarians, equipped with the
techniques which we have catalogued. At stake is the capacity of the
aesthetic to take on the infra-legal role of police, previously borne by moral
medicine, but working now through pedagogy and therapy. Rather than the
exit of the law from a space which it should never have occupied in the first
place and the consequent emancipation of sexual expression from all regu-
lation, there has been a mutation of the pornographic field towards regula-
tion - legal and extra-legal - in accordance with an aesthetic disciplinary
norm.
From this vantage point, the English Obscene Publications Act of 1959
does not appear a piece of flawed legislation. Its evident tension - the
keeping of the medical norm expressed in the 'deprave and corrupt' test and
160 On Pornography

the incorporation of the aesthetic norm embodied in the public good de-
fence - are indicative not of logical contradiction and conceptual error but
of the historically mixed character of the modem pornographic field.

POSTSCRIPT

Penguin Books has just reissued a Thirtieth Anniversary Commemorative

Edition of C. H. Rolph's edited transcript of the 'trial of Lady Chatterley',
adorned with a selection of cartoons and a new Foreword by Geoffrey
Robertson (Rolph, 1990). For us this is a timely chance; for Robertson, a
timeless truth. Nothing, it would seem, has changed in three decades of
intense debate about pornography. The feminist denunciation of Lawrence
as pornographer and campaigns for renewed recognition of pornography as
capable of causing social harm might as well not have happened ('The
damage that gets attributed to books is caused only by the actions of the
people who try to suppress them', p. xxii). They leave no trace on the
monolith of philosophical liberalism and the truth of 'literary emancipa-
tion'. An olympian moral certitude thus lets Robertson harness together an
array of different social issues - homosexuality, abortion, free expression
and, of course, Salman Rushdie's resistance to the decree of death by the
late Ayatollah Khomeini for 'blasphemy' against Islam- in a global and
undifferentiated opposition to 'censorship'.
Thirty years of retrospection have allowed Robertson some distance on
the event of Regina v. Penguin Books Ltd, although what he proposes is not
descriptive revision but partisan endorsement and applause. The trial has
become an exemplary triumph, one to cement into the forensic canon. He
would have us see in Gardiner's advocacy 'the best of modem barristering'
(p. viii) while 'it would be a good test for students of advocacy to consider
how they would have handled the brief for the Crown' (p. xi). Aside from
these pedagogical retrievals and the usual smug mockery of the person of
Mr Griffith-Jones- he alone is singled out for a charge of sexism- the only
interesting shift discernible in Robertson's review is his apparent disen-
chantment with the jury system. Unlike the Penguin partisans of 1960 for
whom the British jury was the vox populi through which History itself had
spoken, this 1990 liberal has doubts about the capacity of juries to set public
standards given, for instance, their very patchy record on protecting free-
dom of literary expression and their proven readiness not always to acquit
in trials for obscenity.
Such patchiness - a corollary, we would suggest, of the uneven distribu-
tion of the cultural ability to perform aesthetic readings of sexually descrip-
 Twentieth-Century English Obscenity Law 161

tive literature- earns Robertson's displeasure. Arch-liberal that he is, he

claims to see through to the 'fundamental' opposition of 'literary emancipa-
tion' and 'censorship'. It is symptomatic of such a view that something even
worse than the merely unreliable jury has appeared, namely the 'state'
censor:

What is most noticeable about this past decade is that the new breed of
statutory censors who sit on the British Board of Film and Video Classi-
fication and the Broadcasting Standards Commission are establishment
pillars who bear no resemblance to the jurors who acquitted the likes of
Lady Chatterley and Linda Lovelace. Juries are no longer trusted to 'set
public standards' - they have erred too often on the side of freedom of
expression.

(Robertson, 1990, p. xxi)

In the following chapters we shall see that the liberal conviction of a single
great choice between the wholly free self-regulating individual conscience
and the censorious police state is anything but an idiosyncrasy of Geoffrey
Robertson. For the present, however, we hope to have shown that Regina v.
Penguin Books Ltd, like the Obscene Publications Act of 1959, was more
complex, contingent and interesting than is suggested by the triumphant
liberal claim that the 1960 verdict was 'the first breach in the repressive
dam of establishment hypocrisy' (p. xiv).
6 The Limits of Law Reform
THE REFORMING IMPULSE

The three decades following the 1959 Obscene Publications Act and the
United States Supreme Court's Roth judgement of 1957 have witnessed
major committees of enquiry into obscenity laws in both England and the
United States, a welter of academic and jurisprudential argument for law
reform, and- in the United States at least- some important changes to the
law of obscenity. These decades have also been marked by growing uncer-
tainty and division amongst those groups seeking reform. The programme
to abolish the legal regulation of erotic literature, while allowing a restricted
'private' consumption of pornography, was an unambiguously good cause
for liberals and radicals during the 1960s. But by the time the Williams
Committee began to hear evidence in 1977 this was no longer the case. The
liberal consensus on the harmless or beneficial nature of erotic representa-
tions had been undermined by the feminist exposure of the gender-specificity
of their consumption and its undesirable consequences for women.
Today this split in the campaign to reform the law confronts us in the
form of an impassable debate over whether the dissemination of erotic
representations is 'harmful' or not. On one side of this dispute we find the
depleted battalions of philosophical liberalism and liberal jurisprudence
whose argument is that, because erotica causes no demonstrable harm to
others, its consumption is a matter of private moral judgement outside the
scope of the criminallaw. 1 The opposing side is far less unified. The claim
that (certain kinds of) erotica are the source of real harms, and should
therefore be legally suppressible, runs through a variety of feminist, 'mor-
alist', and conservative jurisprudential positions- albeit in widely differing
versions.
Clearly, what is not in dispute here is the so-called 'harm condition'
itself; that is, the principle formulated by Mill that the limits to the social
coercion of individuals should be set by the condition of whether their
actions are likely to cause harm to others. It is the argument of this chapter,
however, that the harm condition cannot provide a general ground for
reforming obscenity law, in either of the directions contended for.
The thesis supporting this argument will come as no surprise, given the
perspective of the preceding chapters: the question of whether pornography
is harmful or not is a thoroughly practical question, a matter inseparable
from the historical disposition of a network of administrative calculations,

162
 The Limits of Law Reform 163

ethical practices, aesthetic devices, social knowledges and disciplines. In

Chapter 5 we argued that obscenity law is itself part of this network. Hence
we must be sceptical of attempts to found the reform of obscenity law in a
rational analysis lying beyond the network in which that law is practised;
for example, in a philosophical or empirical analysis of the question of
pornography's harms. In fact all such attempts are futile, given the inescap-
ably practical and historical determination of the question of harm. It is this
determination that sets the scope and limits of law reform.
In order to provide a prima facie justification for this way of proceeding
it is necessary to scrutinise again the confidence with which philosophical
and jurisprudential liberalism has assailed the existing law. This assault, it
will be recalled, is directed at the Hicklin judgement and its qualified
restatement in the 1959 Act. In its brief to report on law and policy on
obscenity and film censorship, the Williams Committee provides a repre-
sentative summary of the liberal critique:

The implication of the deprave and corrupt test and of the judicial
comments on it is clearly that for an article to be found obscene a court
should be satisfied that it is likely to have some kind of deleterious effect
on an individual even if the nature of the effect is hard to specify ... It
is on the basis of claiming those deleterious effects that the law is
supposed to work. It is much less clear, however, that that is how the law
works in practice. We noted the comments of Lord Wilberforce in DPP
v. Whyte that although the words 'deprave and corrupt' appeared in Chief
Justice Cockburn's formula they had in fact been largely disregarded in
common law obscenity cases: the courts simply considered whether the
publication was obscene in some everyday sense and the tendency to
deprave and corrupt was presumed. Lord Wilberforce went on to say that
the Obscene Publications Act 1959 had changed all this. However, we
gained the clear impression from the evidence we received that much of
the time the law has continued to work as Lord Wilberforce said it
worked before 1959.

(Williams Report, 1979, p. 10)

Williams goes on to locate the 'error' in the failure of Hicklin to discrimi-

nate between what is harmful and what is morally offensive: '[I]t is one
thing to claim that a publication tends to deprave and corrupt, and a
different thing to claim that it offends against current standards of what is
acceptable' (p. 11). It is to this slippage between the truly harmful and the
merely offensive that Williams traces the alleged moralism and paternalism
164 On Pornography

of the law, its willingness to use the susceptibilities of the most vulnerable
in order to legally impose a particular morality on the community at large.
The same philosophical mistake is also blamed for the law's more recent
failures and inconsistencies arising, so it is argued, from the attempt to
apply an incoherent statute- the Obscene Publications Act 1959.
Parameters for reform of the existing law are derived fairly directly from
this philosophical analysis. After arguing that the harm of obscenity cannot
be demonstrated on independent (psychological and sociological) grounds
(Chapter 6), Williams claims that it is the fact that some people are morally
offended by it that causes them to object to the obscene. Offensiveness as
an autonomous object of social regulation- or perhaps as a lesser species of
the harm principle- warrants only the administrative restriction of access to
pornography, not its criminal suppression (Chapter 7).
Offensiveness is in tum construed with the help of a particular concept
of representation. Erotic publications which are offensive are so by virtue
of the manner in which they represent 'real sex'. Finally, this offensive
manner of erotic representation is itself specified with the help of the
psycho-aesthetic differentiation of art from pornography (Chapter 8). Erotic
representations are offensive when they transmit real sex in a transparent
manner, without the distancing and cooling mediation of ideas, and with the
single intention of sexual arousal. It is this non-aesthetic transparency of a
class of erotic representations - together with their capacity to manifest
properly private acts in public - that makes them offensive. Indeed, the
Report contends (p. 99), it makes pornography strictly analogous to solicit-
ing, which the Wolfenden Committee on prostitution and homosexuality
had earlier proscribed as the limit of its liberalisation of private sexual
conduct.

Pornography crosses the line between private and public since it makes
available in the form, for instance, of a photograph, some sexual act of a
private kind and makes it available for a voyeuristic interest ... The basic
point that pornography involves by its nature some violation of lines
between public and private is compounded when pornography not only
exists for private consumption, but is publicly displayed. The original
violation is then forced on the attention of those who have not even
volunteered to be voyeurs. They are thus forced or importuned to see
things which they do not think should be seen, and images are thrust into
their mind which they reject. Whatever may be true of the willing
consumer, pornography is straightforwardly offensive to those who do
not want to take it in.
(Williams Report, 1979, p. 97)
 The Limits of Law Reform 165

It is here, at the level of publicly displayed 'photographic' pornography,

that liberalism has established the threshold of offensiveness. Across this
controlled border previously illegal materials will be permitted to migrate to
the bedroom, the closed-front adult book-shop and the restricted-access
cinema.
It is not difficult to detect the three intersecting coordinates that govern
the liberal analysis of the law and programme for its reform. The first of
these coordinates is provided by the harm condition itself. In a rhetorical
manoeuvre which stakes the claim of philosophical liberalism to the terri-
tory of jurisprudence, Mill's harm principle has been invoked to impose on
court-made obscenity law a general ethical and political limit to its inter-
vention in individual conduct. If the consumption of obscene publications
causes no harm to others then it is beyond legal prohibition; however, a
lesser version of the harm principle might restrict the scope of this con-
sumption if it proves to be offensive to others.
The second coordinate is the privacy or autonomy of individual moral
judgement. Where the freedom of the individual conscience stops, there and
only there, at the limit set by the harm condition, the law (and other forms
of social coercion) begins. The individual's conduct should only be
constrained by rational argument and persuasion, according to a deeply
embedded doctrine that social progress is ultimately dependent on the free
reasoning subject. It is for this reason that philosophical liberalism and
liberal jurisprudence privilege individual rights and freedoms, whenever
they come into conflict with the policing of crime, health, manners and
decency introduced by nineteenth-century governmental liberalism.
The thir~ coordinate is a concept of representation, ultimately derived
from Romantic aesthetics and psychology. If obscenity is not actually
harmful that is because it consists of ideas and representations. What people
object to as obscenity - so the argument goes - is in fact aesthetically
deficient erotic representation, in other words pornography. A representa-
tion is deficient either because it transmits real sex in a direct and un-
mediated manner ('naive') or because it displaces real sex altogether
with a tendentious and overwrought erotic fantasy ('sentimental'). In either
case, apparently, the absence of the appropriate reconciliation of experience
and fantasy, drive and norm, allows pornography to breach the line between
private and public, coerce the imagination of the reasoning subject - trans-
forming him into the Williams Report's 'unwilling voyeur' -and thereby
open itself to restriction as offensive (although remaining immune from
criminal prohibition).
On the basis of these three coordinates the liberal reform campaign has
theorised the alleged failure of Hick/in-based law and given birth to a
166 On Pornography

variety of proposals for replacing the crime of obscene publication with

some system of restricted access to 'explicit' pornography. It is important to
observe, however, that what the liberal campaign has produced is not a
single set of statements about obscenity but a discursive domain inside
which a variety of (sometimes conflicting) statements about pornography
can be made. This is the domain in which the legality of pornography is
routinely discussed in terms of its fit with the harm condition, the moral
autonomy or privacy of the reasoning subject, and its problematic qualifica-
tion as a class of aesthetically deficient erotic representations.
The scope and power of this domain is such that many feminist argu-
ments fall within it, despite their ostensible anti-liberalism. For example, in
arguing for a new type of legal regulation of pornography, Andrea Dworkin
(1981) and Susanne Kappeler (1986) invoke the harm condition- meta-
phorically equating pornography with rape - as a general ground of legal
intervention. They also specify pornography as an aesthetically deficient
representation of real sex - one whose 'didactic' subservience to male
fantasy overwhelms the experience of sex and leads to the objectification
and subordination of women. And if on this basis they seek to restrict the
scope of male freedom, this is only to enlarge the freedom of women. The
following remarks are representative:

The reproduction of women in images makes woman-images ever more

exotic and remote -remote from any real experience of women. Women
starve themselves to death in an attempt to force their bodies to corres-
pond to the surreal body-shapes designed by the fashion designers. They
kill their own experience in an attempt to conform to existences imaged
for them. The images and ideals are getting ever more exotic and remote.
(Kappeler, 1986, pp. 79-8)

Our concern with the liberal analysis of obscenity law is, therefore, not so
much with any particular version of it as with the field of intelligibility in
which its various versions have appeared.

REAL LffiERALISM

To bring ourselves up against the limits of this domain of discourse we can

briefly consider a case brought before the High Court of Australia in 1956,
on appeal from the Supreme Court of Queensland. In Transport Publishing
Co. v. The Literature Board of Review, the Queensland Literature Board of
Review had prohibited the appellant company (and a group of similar
 The Limits of Law Reform 167

companies) from distributing a series of periodical 'love comics' - vari-

ously entitled Real Love, Romance Story, Real Story, Real Romances and
Love Experiences - on the grounds that they were objectionable within the
terms of the Objectionable Literature Act 1954 (Q). The case is significant
for us because this Act embodies a modified version of the Hicklin test,
construing 'objectionable' in the following way:

In relation to literature or any part of any literature, regard being had to

the nature thereof, the persons, classes of persons, and age groups to or
amongst whom that literature is or is intended to be or is likely to be
distributed and the tendency of that literature or part to deprave or corrupt
any such persons (notwithstanding that persons in other classes or age
groups may not be similarly affected thereby), objectionable for that it-
(i) Unduly emphasises matters of sex, horror, crime, cruelty or violence;
or (ii) Is blasphemous, indecent, obscene, or likely to be injurious to
morality; or (iii) Is likely to encourage depravity, public disorder, or any
indictable offence; or (iv) Is otherwise calculated to injure the citizens of
this State.
(Transport Publishing Co v. The Literature Board of Review, p. 111)

We might expect this case to display the moralism and paternalism pre-
sumed to flow from Hicklin's 'confusion' of harm with offensiveness or,
perhaps, the beginnings of the inconsistent judgements of jurists attempting
to evade the confusion without a clear alternative.
In fact neither of these deficiencies is apparent in the decision of the High
Court. The Court found by a majority of three to two that the publications
were not objectionable within the meaning of the Act. But if in the judge-
ment of the dissenting minority we fail to find the moralistic conversion of
personal offence to social harm, then neither in the majority judgement in
favour of the appellant company do we find any uncertainty regarding the
appropriateness of the Hicklin-based law. The relation between the two
opposed judgements does not obey the historical analysis projected by
liberalism. As in most cases based on Hicklin, the issue that divided the
minority and majority opinions was not the nature of the publications per se
(about which they were in broad agreement) but the nature of the likely
audience, in particular its susceptibility to erotic corruption and depravity.
Consider in this regard, the remarks in dissent of Justice McTiernan who,
in specifying the nature of the likely audience, reproduced Justice Mansfield's
summary of the evidence heard on this matter before the Full Court of
Queensland:
168 On Pornography

Mansfield S. P. J. made a sufficient and correct view of this evidence,

which I adopt. 'The evidence of the witnesses who swore affidavits and
who were cross-examined at the hearing' (I enclose their names in
brackets), 'leads me to the conclusion that the persons, classes of persons,
and age group amongst whom the subject literature is or is likely to be
distributed consist of the following - 1. A group of unstable female
adolescents (Dr Stafford). 2. Adolescent girls between fourteen and eight-
een years of age who have been committed to the Salvation Army Girls
Industrial Home at Brisbane, most of whom were committed for offences
of a sexual nature, and particularly those who were below average intel-
ligence, emotionally unstable or irresponsible (Matron Gedes). 3. A
group of psychopathic adolescent girls, corresponding to group No. 1 (Dr
Matchett). 4. Normal persons, both adolescents and adults, of average
intelligence (Dr McGeorge). 5. Females 'in their late teens' or any age,
actually, above that, married women and the 'not so young', excluding
middle aged women (Allen Thomas Stacey). 6. Senior office girl class,
many of whom are married women (Aubrey Imrie Panton). 7. Young
men aged twenty years or upwards, of average intelligence and education
(John Wallace Metcalfe)'. (p. 123)

No doubt such a list appears quaint enough at this distance. Still, what we
find here is not some ideological ignus fatus under whose cover a purely
moral affront is attempting to impose itself as law in the guise of a calcula-
tion of social harms. Instead, we catch a glimpse of that infra-legal network
of specialist institutions and know ledges which had long ago carved up the
space of the city into areas of social danger, peopled them with vulnerable
(and dangerous) problem populations, and entered into a remarkable his-
torical exchange with the law. This was an exchange in which the law could
be called in to help manage the residual failures of social policing, while
itself drawing special 'social' knowledges and techniques from this regula-
tory sphere. As we saw in Chapter 3, it was in this specific historical context
- particularly in the exchange between legal regulation and the medical
policing of problem populations - that the category of moral harms entered
the judicial sphere, not in some access of moralism and paternalism that
mistook moral umbrage for harm.
What, then, is the relation between Justice McTiernan's defence of the
quasi-medical proscription of the love comics as a specifiable social pathol-
ogy and the majority's overruling of this judgement? The majority certainly
leave us in no doubt as to their low opinion of the publications. However,
this is expressed not in the language of medical policing but in the unmis-
takable pedagogical idiom of literary criticism:
 The Limits of Law Reform 169

The theme of them all nearly is love, courtship and marriage. Virtue
never falters and right triumphs. Matrimony is the proper end and if you
are not told that happiness ensues it is the constant assumption. They are,
of course, intended for feminine readers. (p. 116)

As a result, say the majority justices:

What they contain is an affront to the intelligence of the reader but hardly
a real threat to her morals. The stories are extremely silly, the letter press
is stupid, the drawings are artless and crude and the situations absurd. But
we are not concerned with the damage done to the intellect or for that
matter to the eyesight of the readers of these foolish periodicals. (p. 118)

This shift from the medical to the pedagogical is, however, carried out
within the Hicklin framework, through the provision of an alternative- non-
pathological- audience typology. This was derived from the evidence of
two newsagents.

The shop of one was opposite a suburban school. According to him he

sold up to six a week of each title of the publications now in question, and
they were bought by adult females whose age was from the late 'teens to
thirty-five years, and not by schoolgirls. The other newsagent carried on
business in the city of Brisbane. He sold six a week of each title (the
number supplied) to customers he described as married women and the
senior office girl type. (p. 118)

On this basis, the Court decided not only that the likely audience consisted
of ordinary members of society, but also that the effect of the publications
on this audience could not be the subject of expert testimony - this effect
being a matter for the 'triers of fact', judge or jury. The decision was given
the force of a dictum.

Ordinary human nature, that of people at large, is not a subject of proof

by evidence, whether supposedly expert or not. But particular descrip-
tions of persons may conceivably form the subject of study and of special
knowledge. Before opinion evidence may be given upon the characteris-
tics, responses or behaviour of any special category of persons, it must be
shown that they form a subject of special study or knowledge and only
the opinions of one qualified by special training or experience may be
received. Evidence of his opinion must be confined to matters which are
the subject of his special study or knowledge. (p. 112)
170 On Pornography

In this manner the pathological typology of abnormally susceptible audi-

ences was ushered from the court-room, along with the testimony of the
custodial psychiatrists, matrons and doctors. In the vacated space we see
the emergence of a new threshold for the problem of erotic representations,
one which is less concerned with its pathological effects on problem
populations than with its pedagogical effects on 'people at large'. Needless
to say, this was also a threshold for the admission of new forms of regula-
tory expertise to the courtroom. Following the medical we have the
aesthetic 'police'.
What do we learn from this little judicial drama? First, as we have
already observed, the correlation of moral delinquency and social harm,
characteristic of the initial organisation of obscenity law, is not a philo-
sophical mistake made by those rushing to impose their own morality as
law. This correlation was the product of a whole network of norms, institu-
tions and special knowledges in which the conduct, demeanour and senti-
ments of urban populations - as well as their health, literacy and domestic
economy - had been brought within the scope of corrective regulation. It
was within the quasi-medical organisation of this governmental network
that pornography had first surfaced as a medical and moral harm - an agent
of social pathology, like gambling and drinking- and the Hicklin test had
become possible.
Second, the High Court's move to reject the pathological audience typo-
logy and the configuration of expertise characteristic of this initial phase -
to replace the most vulnerable with the average audience - does not signify
the collapse of the Hicklin framework. Rather, it is carried out within this
framework but through a new specification of the classes of persons relative
to which the tendency to deprave and corrupt must be measured. The move
from more to less vulnerable audiences (and vice versa) is in fact entirely
characteristic of Hicklin law, reflecting the imperative that the effects of
obscenity be calculated relative to particular normatively specified
populations. This move in no way signifies the law's incipient acknowl-
edgement of the autonomy of individual moral judgement.
Third, despite the Court's proscription of expert testimony on them, the
new categories of 'ordinary human nature' and 'people at large' do not
point to a non-specific audience of morally free individuals. In fact the new
and more general 'likely audience' is composed of a determinate class of
individuals- 'married women', 'the senior office girl type'- whose peda-
gogical formation is deemed less than complete and thus problematic.
While this condition may not be a problem as far as love comics are
concerned, where a more dedicated biblio-eroticism is involved the psycho-
literary immaturity of this audience may give rise to new types of harm. We
 The Limits of Law Reform 171

can suggest, then, that far from signifying the incipient departure of the law
from the moral sphere, the move to a broader and less corruptible audience
is indicative of a transition from a medical to a pedagogical and aesthetic
regulation of pornography. In short, the liberalism of the judgement is
governmental not philosophical.
The argument thus far should be construed neither as a defence of the
timeless legal rationality of the Hicklin framework nor as a denial of the
evident instability of modern obscenity law.lt does imply, however, that the
problems currently besetting Hicklin are not due to some fundamental
categorial error in that law. If we are right about this, then changes to the
law cannot take the form of a philosophical rectification - typically a
rational recognition of the difference between law and morality -of the sort
proposed by philosophical liberalism. But neither can such changes be
justified by appeal to the real harm done by pornography. Transport Pub-
lishing Co. v. The Literature Board of Review- and, arguably, the Roth
decision and the 1959 Obscene Publications Act- indicate that the law is
changing neither in order to rectify an old error nor to acknowledge a new
truth, but as a result of a new configuration of the infra-legal field surround-
ing obscenity law.
Let us suggest, as a hypothesis to guide discussion, that the shift in
question is between two strategies of regulation: from a strategy organised
around the quasi-medical policing of socially pathological problem
populations, to one governed by the pedagogical formation of the sensibil-
ity of the population at large. Taking note of the role of popular literary
education and (non-pathologising) psychological counselling in this new
strategy, and recalling from our discussion of Lawrence the increasing
deployment of erotic representations within the institutions of moral forma-
tion, we can begin to grasp the scope of the changes that obscenity law is
responding to. If pornography is losing its status as a social harm and
is acquiring that of an offensive assault on the sensibility, this is not due to
a sudden recognition that erotic representations are harmless and hence
should be placed beyond legal regulation. It is a result of the ambivalent
role (morally formative if appropriated through the correct pedagogical
channels but deleterious otherwise) that these representations have come to
play in what is in fact a new (pedagogical) organisation of the regulatory
sphere.
This hypothesis makes sense of the ambivalence of many proposed
liberalisations of the law which, despite their claims that pornography is
merely offensive and can be harmlessly consumed in private, nonetheless
establish strict thresholds of access to it based on criteria of sexual maturity.
But is also enables us to put a series of questions to the whole framework
172 On Pornography

of philosophical liberalism in which law reform is based on the notions of

harm, moral autonomy, and representation.

1. If what is to count as the harm of pornography can only be determined

relative to a particular historical network of regulatory know ledges and
institutions- a network that includes obscenity law itself- how can harm
function as a general and independent criterion for limiting the scope of
legal coercion?
2. Can the individual moral sensibility have some sort of intrinsic au-
tonomy or privilege in relation to forms of social regulation and organi-
sation if the pedagogical formation of this same sensibility is one of the
objects of the latter?
3. Can the problem of erotic representations be understood in terms of
the manner in which they represent 'real sex' if their effects vary with
their uses in the practices and institutions of sensibility formation?

These questions will guide the next steps of our discussion.

HARM, MORAL AUTONOMY, AND REPRESENTATION

The alignment of these three elements of the liberal programme is well

illustrated in the 1979 Report of the Committee on Obscenity and Film
Censorship (the Williams Report). If (as is more or less taken for granted by
the Report) obscene publications cause no specifiable harms, then, it is
argued, we have a clear limit to the extent of legal regulation in this area. On
the other side of this border, individual moral judgement regarding erotic
representations should be free and unconstrained: the reason being that it
would be wrong to enforce a particular socially approved moral code when
we cannot tell in advance which of the available moral positions might point
in the direction of full human development (Williams Report, 1979, pp. 50-
60). All erotic representations capable of carrying moral ideas or of aes-
thetically expressing moral opinions should, therefore, be protected from
legal interference. This view leads Williams to recommend, as we have
already noted, the complete lifting of restrictions on publications consisting
solely of the written word. Some erotic representations, however, neither
carry nor express ideas or values, being merely 'photographic' transmis-
sions of real sex acts fulfilling the single intention of sexual arousal. While
not actually harmful and hence open to legal suppression, these representa-
tions are nonetheless offensive insofar so they are public windows on to
private acts, which makes them a nuisance like soliciting. Hence they
should be restricted to a volunteer adult audience consuming them in
 The Limits of Law Reform 173

private (pp. 100--2). The boundary between law and morality- between
erotic representations liable to restriction and those suitable for public
dissemination- is thus set by a specific (aesthetic) conception of pornogra-
phy as 'transparent' sexual representation. This transparency, the Report
assumes, will be registered in the offended sensibility of the 'reasonable
person' unwillingly encountering pornography in a public place.
The most striking and problematic feature of the liberal programme is its
apparent removal of pornography from its role in the historical deployment
of sexuality and the formation of the erotic self. This removal is attempted
by constant appeal to the responses and judgements of an unspecified
human subjectivity. Few have gone further in this regard than Joel Feinberg,
who, in laying down 'the moral limits of the criminal law', removes
obscenity from the sexual sphere altogether. Obscenity cannot be identified
with sexually arousing reading matter because, apparently, sexual excite-
ment is an unambiguously good thing. Through a largely etymological
argument, Feinberg (1985, pp. 97-126) claims that the judgement of ob-
scenity originates in the feelings of distaste and discomfort aroused by
(non-erotic) vulgarity and repellent phenomena ('yukkiness'). Because por-
nography is not necessarily vulgar or repellent, then, says Feinberg (pp.
139-40), it is not generally obscene. In fact those who find it so are the
victims of their own distorted moral sensibilities. Only pornography that is
vulgar and repellent· in addition to being sexually arousing should therefore
be liable to restriction under an offensiveness statute.
Setting aside the inaccuracy of Feinberg's etymology (the Oxford Eng-
lish Dictionary records 'Offensive to modesty or decency; expressing or
suggesting lewd thoughts' as a meaning for 'obscene' dating from the
sixteenth century), the most problematic feature of his attempt to de-eroticise
obscenity is its ostensible appeal to the non-specific responses of a general
human subject. Pornography is not necessarily offensive, according to
Feinberg, because the response of the normal person to the sexual arousal
that it induces is - or should be - that of healthy unalloyed pleasure. The
optimism of this line of argument is matched only by its vacuity. Not only
does it erase the gender-specificity of the 'response of pornography', it also
begs the question as to the latter's offensiveness (or harmfulness) by arbi-
trarily privileging a particular kind of response - uncomplicated erotic
pleasure - as normal.
The arbitrariness of the attempt to set the threshold of offence (or harm)
by appealing to a given normal response is made all the more clear by the
fact that different specifications of normality jostle against one another even
within the framework of philosophical liberalism. In descending from the
philosophy of law to levels of analysis where it stumbles onto the actual
forms of reasoning involved in legal regulation, liberal optimism regarding
174 On Pornography

normal 'human' sexuality begins to disintegrate. According to Lockhart and

McClure's influential 'Censorship of Obscenity: The Developing Constitu-
tional Standards', for example, the normal response to pornography is
anything but robust pleasure:

For hard-core pornography appeals to the sexually immature because it

feeds their craving for erotic fantasy; to the normal, sexually mature
person it is repulsive, not attractive.
(Lockhart and McClure, 1960, pp. 72-3)

Lockhart and McClure's normally repelled person is thus the same person
whose reactionsto pornography Feinberg regards as abnormal and hence as
inappropriate for setting the threshold of harm or offensiveness.
To complete the confusion, the Williams Report attempts to combine the
two contradictory specifications of the normal response in a single complex
figure. On the one hand the Report argues that normal people find porno-
graphy offensive because it transmits properly private sexual activity into
the public domain and 'makes it available for a voyeuristic interest':

For those who are not disposed, as willing consumers, to make scenes of
pornography into objects of their own fantasy, those scenes have a
special and saddening ugliness. In people who are particularly resistant to
such fantasy, either in general, or as involving objects such as these,
anger, disturbance and oppression will be the reactions.
(Williams Report, 1979, pp. 97-8)

On the other hand, because of the nature of the projected scenes, the
involuntary spectator can, as it were, begin to take pleasure in them against
his own will:

The exact relation of pornographic material to the consumer and to his

fantasies is a subtle manner. Even when it is taken up into fantasy,
pornography often retain an assaulting quality - there is a sense in which
it can be found offensive even while it is being enjoyed. In other cases,
the sense of offensiveness evaporates for the consumer who involves
himself in the images offered by photographs or films, or develops his
own fantasy from the written word. (p. 97)

At this point the attempt to draw a general line between law and morality by
appealing to a normally offended response reaches the end of its tether.
 The Limits of Law Reform 175

Likewise the appeal to the unified subject of such a response dissolves in

the contradiction of a pornography that gives offence 'even while it is being
enjoyed'.
In other words, the attempt to use the harm condition to set a general limit
to the legal regulation of conduct breaks down under its own weight. The
ostensible appeals to the responses of a subject who might or might not be
harmed or offended by pornography are in fact covert legislative specifica-
tions of what is to count as harmful or offensive (or normal and enjoyable),
using a variety of unacknowledged criteria.
It is possible to suggest, at this point, that the judgement of harm or
offence is in fact inseparable from specific forms of ethical and social
calculation, which are themselves typically embedded in normative pro-
grammes of ethical and social organisation.2 Ernest Nagel puts the matter in
this way:

[T]he point needs stressing that though in a given society certain kinds of
conduct seem unquestionably harmful, [or, we might add, unquestion-
ably harmless] the classification of such conduct as harmful may, and
frequently does, involve far-reaching assumptions about the public weal
-assumptions which may be modified for a variety of reasons, and which
may not be operative in other societies. This is evident when we reflect
that even in our society not all actions resulting in physical injury to
others, or in depriving others of their possessions, are held to be harmful
in the sense here relevant. Thus the infliction of physical injury on others
in duels or feuds currently counts as action that is harmful, but the
infliction of such injury is not so regarded when it occurs in boxing
contests, in acts of self-defence, or in many though not in all surgical
operations. Moral assumptions and considerations of social policy surely
control this classification of such conduct; and there have been societies
in which those actions have been classified differently.

(Nagel, 1969, pp. 143-4)

As a result, argues Nagel, all attempts to set general limits to the social and
legal regulation of individual conduct - that is, limits independent of the
specific and often variable forms for calculating harm or offence - must
fail. All such attempts will involve covert and often conflicting appeals to
particular specifications of what is to count as harmful, like those made by
Feinberg and Williams. Moreover, these specifications derive from the very
forms of social, ethical and legal regulation whose moral limits philosophi-
calliberalism purports to adjudicate. We can agree with Nagel, therefore,
176 On Pornography

that 'there appear to be no determinate and fixed limits to the scope of

justifiable legal regulation of conduct'. In answer to the first of the ques-
tions asked, we can propose that the harm condition cannot set general
moral or philosophical limits to the legal regulation of obscenity. Indeed, it
seems that what is to count as harm (or offensiveness) in this area will be
determined within the regulatory network of which the law is a part.
What consequences does this have for the second element of the liberal
framework that we have questioned - the element of individual moral
autonomy or privacy? Clearly, if there is no general way of calculating the
harm or offensiveness of pornography, then there is no universal or funda-
mental domain of conscience in which individuals should be free to exer-
cise their moral judgement over pornography. (As we shall see in a moment,
there may well be discretionary areas of a quite different sort.)
The first casualty of this relativising of the moral domain is the liberal
slogan that the activities of 'consenting adults in private' should be free of
legal constraint. As Beverley Brown (1980, pp. 10-11) has pointed out,
'privacy' is an ambiguous term in liberal discourse and in the Williams
Report in particular. It embraces the sense of conduct that is private because
it takes place behind closed doors, as well as the quite different domain of
moral judgement which is private in the sense of being beyond public
(legal, social) regulation. The only thing that holds these two domains of
privacy together is yet a third form of privacy, the privacy of sexual
conduct. According to Williams it is the manner in which pornography
projects the bedroom into the street that offends us, simultaneously breach-
ing architectural privacy and the privacy (autonomy) of our moral judge-
ment, which is subjected to an eroticising coercion. Conversely, the space
that is behind closed doors should be free for us to exercise individual moral
judgement regarding erotic representations. And, indeed, this is the space of
the adult bookshop, whose closed front marks the line between law and
morality drawn in the Williams Report.
This neat alignment of architectural and moral privacy starts to come
adrift, however, as soon as we ask how we are to tell which erotic represen-
tations are the ones that transparently or pornographically project private
sex into the public domain. And it should be remembered that during the
1960s and 1970s this was the crucial question for those seeking to free
erotic art from legal regulation. We have seen that the Williams Report
attempts to solve this problem by invoking the psycho-aesthetic specifica-
tion of pornography. Pornography differs from art either because, in lacking
the mediation of aesthetic intention, it assaults us with raw sexual experi-
ence or because, being dominated by the single intention of sexual arousal,
it subordinates the complexity of experience to the tyranny of fantasy. It is
 The Limits of Law Reform 177

this dual aesthetic failure, the Report argues, that makes some erotic repre-
sentations into transparent projections of private sex and, allegedly, causes
the offended response. Erotic art on the other hand, no matter how hot,
always allows scope for the cooling power of the reader's or viewer's
judgement and places the obstacles of realism in the path of runaway
fantasy.
It should be clear, however, that this aesthetic discrimination of erotic
representations - which presumes a reader or viewer equipped with the
capacity to achieve aesthetic distance in relation to erotic experience and to
balance the complexity of this experience against the single-mindedness of
sexual fantasy- is far from being a general human capacity. Rather, it is an
instance of the highly sophisticated and specialised dialectical skill which
we have described in Chapters 2 and 4. In other words, in demarcating the
point at which erotic representations become offensive, the attempt to
establish a fixed domain of moral autonomy (privacy) is jeopardised by the
specialised and hence variable character of the capacity for discrimination.
Given the variable distribution of this discriminatory capacity or skill, it
seems unlikely either that it will be able to constitute a general threshold for
moral privacy, or that such a threshold could conveniently coincide with the
architectural privacy of the closed bedroom or bookshop.
Appealing to the figure of the 'reasonable person' as the legal reagent
will not by itself solve this problem, for obvious reasons. It is the virtue of
Lockhart and McClure's analysis that it faces this issue- which they call
the problem of the audience - head on. If the response to erotic representa-
tion varies with the kind of person responding, then, they argue, the legal
test for obscenity must itself be a variable one. Moreover, they go so far as
to link variation in response not to purely random individual differences in
taste but to the socially organised patterns of consumption associated with
particular channels of communication:

The existence of substantial variations in audience appeal within every

channel of communication is well known but often overlooked by those
who state that material must be tested for obscenity by the standard of
the average, normal, or ordinary person. Under variable obscenity
the concept of the average or normal person has little place. Instead,
variable obscenity requires frrst a determination of the audience to
which the material is primarily directed, and then, as the standard for
testing the material, the postulation of a hypothetical person typical of
that audience.

(Lockhart and McClure, 1960, pp. 78-9)

178 On Pornography

This postulation of a sliding audience scale relative to which the judgement

of obscenity would itself vary is a substantial improvement on the appeal to
the 'reasonable person', even if it is strongly reminiscent of the typology of
vulnerable audiences characteristic of the reviled Hicklin framework. It
should be clear, however, that the move to a threshold for obscenity that
varies with the cultural level of the audience undermines the liberal attempt
to establish a protected sphere of privacy or individual moral autonomy.
And, indeed, it must be said that Lockhart and McClure are far less con-
cerned to defend such a sphere than either Feinberg or the Williams Report.
Their chief concern is to discriminate those erotic representations that
qualify for protection under the Freedom of Speech Amendment to the
United States Constitution. It is to this end that they make the test of 'appeal
to prurient interest' vary with the categories of their audience taxonomy.
We shall return in the next chapter to the complex matter of constitutional
rights. For the present what is important is to recognise that because the
chief division of this taxonomy- the division between 'sexually mature'
and 'sexually immature' audiences- is in fact determined by the psycho-
aesthetic differentiation of art from pornography, Lockhart and McClure's
variable space of constitutionally protected erotica threatens to ossify into a
fixed Williams-like domain of private moral autonomy.
Like the Williams Report, Lockhart and McClure invoke the psycho-
aesthetic specification of pornography in an attempt to establish a water-
tight correlation between type of material and type of response, or audience
type. Pornography, they say- invoking D. H. Lawrence and the Kronhausens
- appeals to the sexually immature because it offers materials for auto-
erotic fantasy unmediated by a sense of social norms or the complexity of
experience. Erotic art, on the other hand, appeals to the sexually mature
because it provides materials enabling them to bring fantasy up against the
recalcitrant details of sexual and personal life and to subject sexual experi-
ence to the balancing and shaping force of aesthetic intention. But at this
point Lockhart and McClure's attempt to establish a variable threshold for
protectible erotica necessarily confronts the same obstacle as the Williams
Report's attempt to fix a more determinate threshold for the sphere of
individual moral freedoms: namely, the fact that the aesthetic discrimina-
tion of erotic art from pornography, a discrimination on which these would-
be thresholds are based, is in reality a specialised cultural capacity or ability
whose social distribution is far from universal.
This is what undermines Lockhart and McClure's (1960, pp. 72-3)
confident judgement that 'hard-core pornography appeals to the sexually
immature because it feeds their craving for erotic fantasy; to the normal,
sexually mature person it is repulsive, not attractive'. In fact, Lockhart and
 The Limits of Law Reform 179

McClure themselves seem to acknowledge that responses to pornography

are far murkier than this neatly etched psycho-aesthetic differentiation of
audience types allows for:

If it is true that the common man knows little and cares less about literary
qualities, what is to be done with material of substantial aesthetic value
that the common man peruses for his own private titillation, oblivious of
its artistry? (p. 72)

Here- in the gap between the 'normal sexually mature person' who res-
ponds to erotic art via the controlled aesthetic dialectic of fantasy and norm,
and the 'common man' oblivious to everything in it save that which serves
his own 'titillation' - the attempt to correlate materiats and persons and
thereby define the scope of legal intervention falls to pieces. The best that
Lockhart and McClure can do with this recalcitrant common man, whose
biblio-erotic practices open such a breach in their audience categories, is to
call on the stem rebuke of F. H. Bradley:

[M]ost of the time the failure [to achieve an aesthetic appropriation of

erotic art] is in ourselves; but when this happens it is not art's failure.
There may be s_ome who can't appreciate art, and perhaps they should
stay away from it. But what is not tolerable is that stunted natures should
set up their defects as a standard.

(Bradley, in Lockhart and McClure, 1960, p. 72)

But this only succeeds in making it quite clear that the aesthetic discrimi-
nation of erotic representations, far from being a general capacity for moral
judgement independent of social regulation, is in fact being deployed as a
normative ethical ability at the behest of a specific (pedagogical) form of
regulation. The 'normal sexually mature person' who responds to erotic
representations with an exacting and correct reconciliation of sensuous heat
and intellectual detachment is anything but the 'ordinary man', precisely
because this person is the exemplar for what the ordinary man should be.
We can thus answer our second question by concluding that moral
judgement has no general or given form in the individual behind which
social and legal regulation might retreat in order to allow the free private
circulation of erotic representations. Instead, it seems that the aesthetic
discrimination of pornography is a specialised ethical practice deployed as
a norm of ability and a form of conduct inside a definite pedagogical form
of social regulation. Access to erotic representations cannot therefore have
180 On Pornography

the form of a civil or legal right deriving from the presumption of a general
individual moral autonomy. It remains a regulated conduct, contingent on
the acquisition of normative ethical abilities and varying in scope as the
socially regulated pedagogical distribution of these abilities itself varies.
Moral autonomy, we can suggest, is not based on a general faculty for
reason. Nor can it be made to coincide with the space behind closed doors
- contingent as it is on the practical and variable social distribution of
special ethical techniques and skills. In this light Lockhart and McClure's
variable test for obscenity might well be defensible. It cannot, of course, be
defended as a general test establishing the threshold of moral freedom. But
it may well be accepted as a specific normative mechanism for determining
when the regulation of erotic images can, depending on the ethical qualifi-
cation of the audience, be transferred from the legal to the pedagogical
apparatus.
What do the preceding remarks imply for the third question that we
addressed to the programme of philosophical liberalism - the question
concerning the concept of representation that it employs? It will be recalled
that the liberal strategy for reforming obscenity law assumes that pornogra-
phy is defined by its representational relation to 'real sex'. Pornography is
specified in terms of the manner in which it portrays real sexuality in ideas
or images. There are a number of reasons for this privileging of the concept
of representation in philosophical liberalism.
First, it appears to provide a secure basis for the operation of the harm
condition. After all, the argument goes, no one has ever been actually
harmed by ideas or images. If these are what erotic representation consists
of, then there is no justification for its legal suppression. Second, represen-
tation provides an appropriate and uniform ontology for the presumptive
domain of free moral judgement. This is the domain in which the subject's
rational scrutiny of ideas can supposedly only reach the truth in the absence
of extrinsic constraint and coercion. An erotica consisting of ideas and
aesthetic expressions of sex is therefore an appropriate object for the free
exercise of moral judgement. Third, the concept of representation allows
philosophical liberalism to fill the formal space of moral judgement with a
particular ethico-sexual content. This occurs because it is assumed that
(normal) real sex is an unqualified good - an important focus for individual
identity and a legitimate source of human happiness and pleasure. If this is
so then erotic representations which do no more than portray real sex in
ideas are also a prima facie good.
Pushed as far as it will go - as it is by Feinberg - this argument issues in
a call for the deregulation of erotic representations, because all they do is
reactivate real sexual desire and pleasure in the sphere of ideas. Those
 The Limits of Law Reform 181

offended by erotica are precisely those whose own real sexuality is defi-
cient. They are, says Feinberg (1985, p. 140), 'people with prudish moral
sensibilities who get trapped between their own salaciousness and shame'.
The more typical liberal position, however, is represented here by the
Williams Report. While assuming that sex is good and that so (therefore) is
its representation, the Report argues that certain kinds of erotic representa-
tion - that is, those that transmit rem. sex too transparently or leave it at the
mercy of an unconstrained auto-erotic fantasy- are (psycho-aesthetically)
inappropriate to their subject matter and therefore open themselves to
regulation. Indeed, these pornographic representations acquire such erotic
force that they may forfeit their status as representations altogether. They
tend to coerce the imaginations of their viewers, and thereby threaten to
cross Mill's line of reasonable persuasion and re-enter the domain of harms,
albeit in the milder form of offensiveness.
It is not difficult to make out the philosophical conception of the subject
lying behind this specification of pornography as the (psycho-aesthetically)
inappropriate representation of real sex. The philosophically conceived
subject is after all the subject of consciousness or representations. This is
the subject that is immune to the putative harms of erotic representations
simply because they are representations. And it is this subject that possesses
moral and rational faculties able to judge these representations, except
where their inappropriateness to their object invests them with an erotic
force that pushes them outside the sphere of representation altogether. But
it is this very generality of the subject of representation - with its presumed
faculties of reason and moral judgment - that we have begun to call into
question. Our analysis of the historical contingency of harms and the
practical variability of the ethical capacity deemed appropriate for consum-
ing erotic representations is inimical to this philosophical conception of the
subject.
Nor should we be too surprised if the general concept of representation
invoked by the liberal programme is susceptible to evidence of similar sorts
of historical contingency and variability. The difficulty of maintaining such
a concept is apparent in the Williams Report. On the one hand, given that
it construes the offensiveness of pornography in terms of the latter's capac-
ity for transparently projecting real sex acts into the public domain, the
Report equates offensiveness with the representational function of porno-
graphy:

The term 'pornography' always refers to a book, verse, painting, photo-

graph, film, or some such thing - what in general may be called a
representation. Even if it is associated with sex or cruelty, an object
182 On Pornography

which is not a representation - exotic underwear, for example - cannot

sensibly be said to be pornographic (though it could possibly be
obscene).

(Williams Report, 1979, p. 103)

On the other hand, erotic objects that are clearly not representational in the
required sense, are elsewhere deemed to be objects falling within the
definition of restricted matter: 'Restriction will apply not only to publica-
tions, but to 8 mm films etc; also, the kind of sex hardware to be found in
many sexshops would we think be equally covered by the definition' (p.
125). In the ambiguous space between the 'exotic underwear' that is not a
representation and is therefore not offensive, and the 'sex hardware' that is
similarly non-representational but for some reascm fails to evade offensive-
ness, we can detect a deep instability in the concept of representation. This
incoherence points us towards the fact that erotic representations (books,
videotapes) are typically found alongside a range of other activities and
objects (fantasising, underwear, intoxicants, sex aids) used in a variety of
erotic and eroticising practices. In other words, the non-representational
offensiveness of the sex hardware suggests that the problematic character of
erotic representations is not to be looked for in their representational func-
tion but in their use, as eroticising devices.
This hypothesis is amply confirmed if we recall the manner in which the
(putative) representational inappropriateness of pornography to its object is
specified within the liberal framework. Pornographic transparency or ex-
plicitness is specified in terms of a dual failure to achieve the correct
aesthetic disposition; that is, the disposition in which raw sensuous experi-
ence is shaped by ideas and the single-mindedness of erotic fantasy is
diversified by an access of experiential complexity. In short, the offensive-
ness of pornography is a function of its failure to be erotic art.
As we have seen in earlier chapters, the infra-legal knowledge operative
in this specification is the discourse of Romantic aesthetics. The central idea
that a work of art can never be pornographic - because its erotic parts are
never merely erotic but always integrated into a more complex and de-
tached aesthetic whole- is a function of the imperative that art must achieve
the reconciliation of experience and ideas, content and form. The role of the
Romantic dialectic in detaching the erotic from the pornographic is clear
enough in Jean Paul's remark:

For instance: that a work of art as such can never be immoral - any more
than a flower or the whole of creation - and that any partial immorality,
 The Limits of Law Reform 183

like any partial lapse of taste, is resolved into its opposite by the spirit of
the whole, stood less in need of proof yesterday than it did the day before
yesterday.
(Jean Paul, in Witte, 1975, p. 361)

It soon becomes apparent, however, that this aesthetic dialectic has as its
focus not the representational relation between art and reality but a rela-
tionship of a quite different order which is generally understood in Roman-
tic terms. The nature of this other focus was long ago made clear by Schiller
in a set of remarks in his On the Aesthetic Education of Man concerning the
relation between the work of art and its reader.

But it is by no means always a proof of formlessness in the work of art

itself if it makes its effect solely through its contents; this may just as
often be evidence of a lack ofform in him who judges it. If he is either too
tensed or too relaxed, if he is used to apprehending either exclusively
with the intellect or exclusively with the senses, he will, even in the case
of the most successfully realized whole, attend only to the parts, and in
the presence of the most beauteous form respond only to the matter.
Receptive only to the raw material, he has ftrst to destroy the aesthetic
organisation of a work before he can take pleasure in it, and laboriously
scratch away until he has uncovered all those individual details which the
master, with infinite skill, had caused to disappear in the harmony of the
whole. The interest he takes in it is quite simply either a moral or a
material interest; but what precisely it ought to be, namely aesthetic, that
it certainly is not. Such readers will enjoy a serious and moving poem as
though it were a sermon, a naive or humorous one as though it were an
intoxicating drink.
(Schiller, 1795, pp. 157-9, our emphasis)

In other words, this aesthetic is not concerned with the representational

relation of art to its object but with the ethical relation of the individual to
his or her self, something which can be picked out for attention through a
specific practice of reading.
In Chapter 4 we saw that the activity of aesthetic reading is organised
around a recipe for dividing the 'ethical substance' into intellectual and
sensuous drives and a practice of modifying each against the other. The
object is to shape a self that reconciles and transcends the poles of moralism
('too tensed') and sensuousness ('too relaxed'). This practice of aesthetic
reading and viewing is thus an ethical practice for specifying and shaping
184 On Pornography

one's relation to one's self. In Schiller's dual stigmatisation of readers who

are alternatively moralised or intoxicated by their inappropriate use of
literature, we can see the historical emergence of the normative audience
typology through which liberalism seeks to specify pornography. The aes-
thetic reading of literature thus has the form of an ethical test or discipline
associated with the mastery of a special 'practice of the self'. And the
imperative to achieve the aesthetic integration of erotic material - for
example, Schiller's (1795, p. 109) wish to balance his sensuous and intel-
lectual interests in the statue of a Greek goddess - must be seen in this
context.
It should now be clear that the inappropriateness which liberalism as-
cribes to some erotic representations is attributable not to their representa-
tional relation to 'real sex' but to the ethical disposition of those who use
such representations for either moralising or excitatory purposes. Conse-
quently, pornography concerns not one's relation to the sex that it repre-
sents but one's ethical relation to representations of sex. Pornography is not
a representation of real sex but a real practice of sex using representations.
Ethics here is not identifiable with a moral code or framework through
which the subject of consciousness judges erotic representations. Rather,
we must understand the ethics of the Romantic aesthetic in terms of that
specific set of techniques and practices through which the individual uses
erotic representations to problematise the self and subject it to the paired
forces of desire and norm, concupiscence and judgement. As we saw in our
discussion of Lawrence, far from casting pornography out of the literary
field, this highly technical aesthetic-ethical practice is the key to admitting
it - as the source of the erotic fantasies and experiences that must be
confronted and tamed by an art whose access to sexual truth and pleasure
they nonetheless guarantee.
If something like the preceding reconstruction of the concept of erotic
representation is correct, then the threshold of pornographic offensiveness
cannot have a general form determined by the criterion of representational
inappropriateness. This remark applies with equal force whether the reality
that pornography is supposed to represent is that of a liberated erotic
mutuality, or a repressed women's experience. The concept of porno-
graphic transparency or explicitness in fact signifies a 'failure' of the
dialectical shaping of the self, typically through an indulgence of auto-
erotic fantasy. Hence this concept only makes sense relative to the specific
ethical techniques and practice- or ethos -in which this capacity for ethical
self shaping is formed and maintained. Needless to say this special capacity
is far from universal; its social availability and importance is contingent on
its practical (pedagogical) distribution. For this reason, it can be accorded
 The Limits of Law Reform 185

no epistemological privilege in relation to other (medical, social) regulatory

deployments of erotic representation.
It is possible to suggest, then, that the framework of harm, moral au-
tonomy and representation - on which the liberal programme depends but
which has also played an important role in feminist counter-arguments- is
inadequate for understanding the network of social, ethical and legal insti-
tutions responsible for the regulated circulation of erotic representations. In
the first place, the harm condition cannot establish universal moral limits to
legal coercion- nor indeed provide a general moral basis for such coercion.
This is because what is to count as a harm is contingent on specific and
variable forms of calculation and social regulation, among which we find
obscenity law itself. The judgement of harm cannot be made independently
of the specific domains of intelligibility formed by the practical deployment
of such forms of calculation and regulation.
Second, it seems we cannot legislate for a sphere of deregulated access to
erotic representations on the presumption of a given individual capacity for
free moral judgement. The (psycho-aesthetic) discrimination of pornogra-
phy, which liberalism imports to establish the threshold of private con-
sumption, turns out to be a specialised and more or less restricted ethical
ability. This ability is itself dependent on the regulated mastery of a definite
ethical technique and practice and varies with their practical-historical
distribution. The question of at what points and to what degree the law
might withdraw from the regulatory field cannot, therefore, be settled in
advance of practical assessments of the social distribution of ethical compe-
tence. A wider dissemination of the aesthetic capacity for self-direction
may well now be in progress. However, such a change does not signify the
deregulation of the moral sphere. It indicates a mutation inside the regula-
tory field, from a legal-medical to a legal-pedagogical configuration.
Third, a threshold for restrictable publications which is organised around
a distinction between art and pornography cannot have a determinate form
based on the latter's alleged inappropriateness as a representation of 'real
sex'. The inappropriateness of erotic representations, we discovered, was
not epistemological and general, but ethical and contingent; that is, contin-
gent on the variable distribution and mastery of the ethical technique and
practice that determine what counts as an appropriate relation to and use of
such representations. As the offspring of this Romantic practice, the psy-
cho-aesthetic threshold for pornographic transparency has no epistemologi-
cal privilege in relation to other thresholds, but itself remains dependent on
the social distribution of a particular cultural competence.
If the foregoing analysis is correct, then the difficulties confronting the
legal regulation of obscenity cannot be understood in terms of the 'confu-
186 On Pornography

sion' or 'paternalism' of the law. Nor can they be resolved through an

exemplary process of rectification and reform founded on a general theo-
retical analysis of harm, moral autonomy and representation. Obscenity law
is not founded in an all-purpose subject of consciousness whose susceptibil-
ity to harm or offensiveness can be universally calculated, whose inherent
moral capacity sets limits to legal regulation and constraint, and whose
sexual being is transgressed by an inappropriate representation. Instead, as
we have argued, the thresholds, procedures and effects of obscenity law are
determined by its place in the network of communicational, ethical, and
governmental institutions in which the circulation of erotic representations
takes place.
In other words, we are suggesting that this field - together with notions
of its reform or transformation- is without foundation in the human subject,
whether the latter is construed as liberalism's free moral reasoner or in
terms of an unfulfilled women's sexuality. The pornographic field is gov-
erned neither by the reasoning subject nor by 'women's experience'. Ap-
proaches to its reform should therefore recognise the field as organised by
a shifting network of administrative calculations, ethical disciplines, eco-
nomic incentives and regulatory institutions relative to which particular
forms of reasoning and experience become possible. The action of obscen-
ity regulation and the scope for its reform are contingent on the historical
configurations of this network, and on the forms of assessment which these
make possible.

HISTORY LESSONS FOR LAW REFORMERS

In this chapter, our primary concern is to show why the attempt to render
law transparent to the truth of human sexuality and to the principle of
privacy, through a fundamental reconstruction of the obscenity statutes,
remains impractical and unrealisable. In this demonstration, we have re-
turned more than once to the fact of the historical variability of the sphere
of biblio-erotics. One aim in doing so has been to show that in the shaping
of western sexuality the most intense effects of eroticisation have been
confined - paradoxically, given the supposedly unfettered sexuality of the
popular classes- to those sectors of the population most highly-educated in
the techniques of sexual self-mastery. In the light of this variability, we
have undertaken an historical reconstruction of the shifting forms of ob-
scenity law within the regulatory field concerned with pornography. In this
final section, we shall outline certain lessons, learned from that reconstruc-
tion, which apply to programmes for the reform of obscenity law. Our
 The Limits of Law Reform 187

delimiting of the categories of autonomous moral subjectivity and of aes-

thetic representation finds a further application here, in relation to liberal-
philosophical projects of deregulation that seek once and for all to dissoci-
ate law from morality by expelling the former from the sexual areas of life.
These projects typically envisage law only as an intrusion into the given and
sacrosanct sexual freedom of individuals.
Despite what the censorship historians say, the entrance of the law into
the sphere of biblio-erotics did not occur in one fell swoop at the beginning
of the eighteenth century, when an ascendent Puritanism deployed the
common law to repress a previously unconstrained expression of sexuality.
Not only were Puritan techniques of ethical intensification far more
ambivalently related to the expression of desire than this concept of repres-
sion allows for, but also, in the creation of the crime of obscene publication,
the steps by which the law entered the field were too small, faltering and
contingent to be attributed to any epochal 'spirit'. Obscene publication
became a crime only when an unforeseen expansion of the government
sphere - dependent on a new identification of morality with public order -
coincided with the demographic expansion of the ethical sphere. In its tum,
this latter expansion was dependent on the printed dissemination of
'ethicising' literature and on an unforeseen widening ofthe consumption of
ambivalently moralising eroticising books. This was the threshold of
juridification for pornography. The law's entrance was not the sign of an
intensification of Puritan repression, the first fatal intrusion of the criminal
law into a sphere of morality that properly belonged to the individual
conscience.
From the outset, then, obscenity regulation has not marked an exemplary
border between law and conscience but the historical relation between
governmental techniques and the cultural techniques of conscience-forma-
tion. The example of Curl/ already points to why it is impossible to under-
stand the regulation of the field in terms of a timeless division between a
public domain of legal regulation and a private sphere of individual moral
autonomy. The private formation of the individual's ethical relation to his
or her self, as desiring subject, was itself contingent on the public dissemi-
nation of books as a commodity.
Nor is the fact that the law was very little used during the eighteenth
century a reflection of some fundamental confusion in its relation to moral-
ity -an early uncertainty over whether obscenity actually harms or merely
offends - that might later be rectified in an exemplary rationalising gesture
by reformers. It is simply a historical indication that the overlap of the
techniques of government and the techniques of ethics registered by the
new law was initially relatively unimportant.
188 On Pornography

That obscenity law should subsequently have come to cover a wide

regulatory spectrum- from police regulation through minor laws regulating
street trading to the full majesty of the criminal law and jury trial - is not a
sign of moral inconsistency in need of rational reconstruction. It too simply
indicates that, as far as pornography is concerned, the object of governmen-
tal regulation has been the circulation of a particular cultural commodity, a
commodity bearing the (biblio-erotic) techniques responsible for a specific
practice of the self as a desiring subject.
The emergence of the modem configuration of the pornographic field
was, as we proposed in Chapter 3, largely a nineteenth-century develop-
ment, and once again dependent on a particular transformation in the
techniques of government. In the decision to punish Curll for breaking the
King's peace and corrupting the morality of the King's subjects by placing
him in the pillory, we witness a late instance of the exercise of power
through the public display of the sovereign's might to the crowd. By the
beginning of the nineteenth century, power was increasingly exercised
through a network of less conspicuous institutions - medical, pedagogic,
assistantial. These were not organised around the direct public display of
sovereign power before the disorderly crowd. Their logic was provided by
a whole series of less visible disciplinary techniques working below the
threshold of the law. These operated at the level of the individual, but the
individual was now envisaged as member of a population whose moral and
physical condition was the concern or 'problem' of various medical, educa-
tive and demographic knowledges and institutions.
According to Foucault (1979, pp. 33-4, 103-4), it was through this
network of disciplinary institutions that the 'confessional' techniques of
ethical self-problematisation underwent their own remarkable redeploy-
ment, transformation and diversification. In their migration through the new
institutions of public health, popular education, family reform and popula-
tion management, the ambivalent techniques for 'revealing' oneself as a
desiring subject acquired new objects. They re-surfaced in a variety of new
forms: as medical techniques for managing an ever-present pathological
sexuality; as pedagogical techniques for eliciting and normalising the sexu-
ality of school-children; and as medical educative strategies targetted on the
family. In this play of watchfulness and confession, a whole series of
problematic sexualities would appear and multiply, leading to increased
sexual attentiveness and a further intensification of eroticism in family
existences.
Needless to say, this multiplication was not without consequences for the
circulation of erotic representations and biblio-erotic techniques. First, it
was the thresholds set by the new governmental institutions that were
 The Limits of Law Reform 189

responsible for the forms in which pornography surfaced as a social

problem during the nineteenth century. The explanation in terms of
general and trans-historical concepts of repression - moral or economic - is
quite misplaced. The eighteenth-century juridical notion of corruption of
public morals by an obscene libel was thoroughly reconstructed when the
harms of pornography became calculable in terms of the norms, know ledges
and objectives of the medical, pedagogical and demographic deployment
of sexuality. It was in this new cultural-legal environment that the
Hicklin framework became possible. If Hicklin made the crime of obscene
publication relative to a classification of vulnerable populations and
dangerous places, this was not due to the rise of a moralistic Victorian
paternalism. It was the straightforward outcome of the manner in which
erotic representations crossed the thresholds of the new institutions whose
management of problem populations extended to the policing and welfare
of their sexuality.
Second, pornography was anything but a passive agent in this process.
Pornography had emerged at the margins of the religious and ethical tech-
niques responsible for forming the relation to the self as the subject of
desire. The historical pattern in which the transmission of these techniques
through the printed book had permitted the erotic destabilisation of the play
between norm and desire was repeated in the new context. In the more
recent medical, pedagogical and familial organisations of sexuality, the
pornographic book operated as a destabilising relay point. Through it, the
already unstable relation between normative problematisation and erotic
intensification could be tipped in favour of a desire whose pleasure derives
from its subversion of the pedagogical process and its transgression of the
sexual order of the family. Nineteenth-century pornography - with its
characterology of insatiable perverts, precocious schoolchildren and de-
bauching teachers and parents - is thus not the revenge of the drives against
the repressive force of the institutions of sexual regulation. It is an optional
practice of sexuality that arose when the ambivalent techniques of sexual
formation deployed in these institutions were redeployed and revalorised
through the destabilising medium of the book.
This deep mutual dependency of pornography and the social regulation
of sexuality has made the policing of obscenity laws both a sophisticated
and an unstable area of our judicial systems. If pornography did indeed
represent the return of a repressed sexuality after its banishing by morality,
then - whether one applauded or bewailed this return - there would be
no difficulty in proposing its unconstrained circulation or, alternatively,
its prohibition. However, far from signifying the return of a banished
sexuality, pornography represents a communicational relay within a set of
190 On Pornography

institutions that operate through the regulated intensification of sexuality.

The problem with pornography is not that it represents a sexuality which
medical, pedagogical and familial institutions are busy denying, but that it
permits the controlled techniques of sexual incitation used in these institu-
tions to be relayed to milieus where they are put to different and eroticising
uses.
These uses are not altogether different, however. For this reason, the
regulation of pornography cannot be based on a single general division
between the licit and the illicit. Instead, it has been historically organised by
a set of medical and educative norms that allow the regulation of erotic
representations to vary with the circumstances of their use and the 'matu-
rity' of their specific audiences. We can now see why obscenity law and-
more importantly - its reform cannot take as their object the complete
extirpation (or complete deregulation) of pornography. We also see why the
role of obscenity law has typically been to provide legal buttressing for
medical, pedagogical or other systems for managing the consumption of
erotic representations.
Equally liable to evaporation in the face of the historical facts is the
allegedly fundamental distinction between 'literature' and 'pornography'. It
is this distinction which - according to the liberal reform programme - the
law chose to ignore in its haste to enforce a particular moral point of view.
However, as we have noted, far from being timeless and fundamental, this
distinction only emerged gradually during the nineteenth century, with the
dissemination of a specialised Romantic aesthetic. This aesthetic provided
the dialectic between sensuousness and morality, content and form, relative
to which certain works could be stigmatised as pornographic for their
failure to integrate sexual detail and moral structure, erotic fantasy and
experiential complexity. By contrast, the field of eighteenth-century pub-
lishing had simply not been organised by an exemplary division between
the aesthetic and the non-aesthetic. This was because an audience equipped
with the aesthetic taste and ethical technique for consuming published
literature in this specialised manner had not yet emerged.
Nor was the emergence of such an audience universal in the nineteenth
century. We have noted the tripartite division of nineteenth-century English
literate culture: an esoteric 'pornography of perversions' directed at ami-
nority of middle-class men; a mainstream of educative novels directed at
the bourgeois household; a popular bawdy of the streets. This division
cannot be understood via the aesthetic model. Rather, it must be described
in terms of the differential circulation of specific types of publication to
particular audiences -audience types increasingly shaped and differenti-
ated by the new medical, pedagogical and familial institutions that formed
 The Limits of Law Reform 191

the emerging 'social' sphere. Nineteenth-century obscenity law- which, as

we have argued, needed to contain no exemption for erotic art or literature,
since it was chiefly engaged in a medical policing of street pornography -
cannot be criticised for failing to embody the distinction between literature
and pornography which liberal reform takes as a fundamental truth. The
historical and ethical space in which this distinction was to become routine,
intelligible and policeable was still in the process of forming.
If the aesthetic exemption has since emerged as a crucial element of
obscenity law and its reform, and if the novel of erotic education has
emerged as a staple commodity of the literary field and the book trade, these
changes were in part determined by the long march to dominance of Ro-
mantic ethics and aesthetics. It was this advance which permitted the
'confessional' relation to the desiring self to be recast in the form of a
dialectical exercise, in which the imperative to reveal the smallest move-
ments of desire was a function of their normative prescription. In this
exercise the point of acknowledging desire is not to open for inspection the
shameful secret of human nature - a desire which threatens the individual's
spiritual composure and physical health unless kept in check. Rather it is to
allow desire to enter into an equal partnership with morality and the intel-
lect: to acknowledge that if sensuous experience has to be shaped by moral
ideas in order to free 'man' from its unconscious immediacy, then these
ideas must themselves be pliable to the force of desire if they are to avoid
repressing pleasure and warmth beneath the cold weight of abstraction.
While remaining parasitic on the logic of the confessional apparatus -
which implants desire in the individual who seeks to organise his thought
and feelings around its hidden presence - the Romantic dialectic thus
codifies the individual's relation to the desiring self by treating it as the
other half of a still (and perhaps always) incomplete being. For those who
master it, this sophisticated exercise permits a modification in which the
flesh ceases to be what one is forced to acknowledge despite one's self,
becoming instead that which one actively avows in order to more fully
become one's self.
Are we justified in seeing in this technical modification the source of the
more liberal attitude to sex that emerged in advanced circles - the increas-
ingly aestheticised stratum of the educated middle class - towards the end
of the nineteenth century? In any event, there seems little doubt that the
Romantic dialectic opened a space where sexuality would enter the educa-
tive novel as a condition of the latter's organic adequacy to what was then
coming to count as the 'full' range of experience. Needless to say, the
sexuality that stepped forward to fill this role was anything but some long
suppressed human essence. Instead, the Romantic dialectic opened a door to
192 On Pornography

the specific range of sexualities that had been positively created by nine-
teenth-century medical, pedagogical and familial problematisations, re-
layed through the eroticising circuit of the bourgeois pornography of per-
versions, and now finding a way back into the sphere of regulated public
culture. Through this door - at first somewhat shyly, in the manner of
Lawrence's discreet sodomites and Nabokov's aesthetic and witty paedo-
philes, and then more flagrantly in the form of Miller's insatiable bohemians
and Burroughs' hallucinogenic fetishists, coprophags and necrophiles - the
whole sorry characterology of the nineteenth-century deployment of sexu-
ality stepped out into the educative novel.
We are in no danger of overlooking the eroticising effects of this migra-
tion. What we are less likely to observe, however, is the manner in which
the old sexual personae underwent a pedagogical change in their new
environment. They were in fact transformed by the Romantic dialectic into
so many opportunities and occasions for members of an ethical elite to
practice facing up to their sexuality and achieving its aesthetic sublimation.
Although the Romantic aesthetic provides an important clue to the form
of the modem pornographic field, we must not lose sight of the fact that for
most of the nineteenth century it remained the esoteric ethical practice of a
social minority. No logic inherent in 'history' or 'man' dictated that the new
dialectical erotics should become anything more than it was in the 1880s
and 1890s - the caste practice of those small erotic-aesthetic coteries
associated with the names of Edward Carpenter, Havelock Ellis, Walt
Whitman and D. H. Lawrence. The central condition for the aesthetic
transformation of the pornographic field is to be found elsewhere, in the
emergence of popular education.
The popular school became perhaps the principal scene for that discipli-
nary strategy according to which the social attributes of populations could
be governed via an administration of individualising ethical techniques. In
this context, literacy was not only an attribute whose statistical distribution
could be used to measure the cultural level of population; it was also a
normative ethical skill whose mastery allowed individuals to measure the
degree to which they had succeeded in improving their self. It is the fact that
print literacy permitted a rapid assimilation of information while remaining
deeply embedded in the techniques of ethical self formation that marks its
importance for the pornographic field. A population that cannot read cannot
be 'corrupted' by eroticising books: but then, neither can a population that
is not equipped for and habituated to the use of reading as a definite means
of gaining access to, and shaping, a self.
As we observed in Chapter 4, the emergence of a popular education
system organised around techniques of moral supervision allowed the Ro-
 The Limits of Law Reform 193

mantic dialectic itself to be transformed and redeployed as a disciplinary

technique. In this system, the esoteric relation to the self produced by the
aesthetic dialectic was gradually grafted onto the teacher's supervisory
relation to the student. As a result, for the first time the formerly virtuoso
exercise of dividing and reconciling sensuousness and reason, fantasy and
norm, found application as a pedagogical task of behaviour for much larger
groups. This governmental re-deployment of the Romantic aesthetic meant
the appearance of a new type of literary and ethical education. Whole
populations could now be routinely required to discover their sexuality in
the newly erotic characterology of the educative novel, while learning how
to play it off against a variety of medical, pedagogical and familial norms.
What is more, in schools and universities they were examined on their
success in these endeavours.
The emergence of a literary erotics based in a dialectical stylisation of the
desiring self and the gradual deployment of this exercise as a pedagogical
discipline have been centrally responsible for the modem re-organisation of
the pornographic field. And in these intersecting developments lie two
historical lessons for would-be law reformers.
First, by allowing the auto-erotics of nineteenth-century pornography
and the pedagogical action of the social novel to exchange functions in the
novel of erotic education - and by expanding the audience possessing the
ethical capacity required for the latter's consumption- these changes set the
scene for the great literary show trials of the twentieth century. The trials
involving works ofRadclyffe Hall, Lawrence, Joyce, Miller and Burroughs
have typically been commemorated as the attempts of a desperate moralism
to repress the exploration of human sexuality carried out by the aesthetic
vanguard on behalf of all of us. In the light of the preceding historical
analysis, however, these events are more adequately understood in terms of
the surfacing of pornographic auto-erotics inside the educative novel; that
is, in a novel whose mass circulation forced it into the hands of everybody
and thus across the thresholds of obscenity set by the medical and pedagogi-
cal policing of populations.
Second, the social expansion of the educational apparatus has been
accompanied by a shift from the medical to the pedagogical management of
sexuality. Not only has this shift moved regulation away from the patho-
logical and towards a focus on personality formation and self-improvement,
it has also provided regulation with a new form and goal: the dialectical
reconciliation of erotic representations and social norms in an appropriately
aestheticised biblio-erotics. These are the circumstances - not some funda-
mental rectification of an earlier moralism - that explain the recent shift
from a preoccupation with the harms caused by obscenity, to a preoccupa-
194 On Pornography

tion with the offense that pornography might give by virtue of its (or its
consumer's) aesthetic incompleteness.
Drawing a distinction between art and pornography, as we have argued,
cannot provide a universally valid line marking the point at which the
individual conscience is to be freed from regulation. It cannot do this
because the capacity to make this distinction is itself a highly normative
ability dependent on thresholds of ethical-erotic 'maturity' decided within
the pedagogic regulation of sensibility. The idea that the task of law reform
is to redeem the law from moralism by showing it how to withdraw from the
sphere of conscience - together with the idea that the threshold of con-
science can be set in terms of the aesthetic appropriateness of erotic art to
true sex - should therefore be set free to wander in the higher and most
speculative reaches of philosophical liberalism. In their place we have
offered a more historical and practical understanding of the direction taken
by recent changes to obscenity law. This direction has been set by the
pedagogical transformation of the management of sexuality. As a result of
this transformation, the law is acquiring the function of administering a
variable access to erotic representations, an access calculated according to
the aesthetic and ethical maturity of particular audience types.
In this context, the liberal reformer's attempt to set apart a fixed domain
of individual conscience, moral freedom and private consumption, an at-
tempt based on a fundamental distinction between art and pornography,
becomes unintelligible. The 'offensiveness' registered by the aesthetic
assessment of pornography is in fact, as we have shown, an ethical inappro-
priateness dependent on what is taken to be an unbalanced use of porno-
graphy by 'immature' audiences. The immunity of certain erotic represen-
tations from legal or administrative restriction - that is, their status as
'erotic art'- can, therefore, never be absolute or universal since it must vary
with the distribution of the ethical technique that permits an audience to
aesthetically integrate and sublimate the pornographic elements of these
representations. The variable test for obscenity proposed by Lockhart and
McClure and used in some American jurisdictions is in this sense quite
defensible. What needs to be kept in mind, however, is that the requisite
thresholds for audience maturity are not facts to be registered by the law,
but norms of erotico-ethical competence that the law helps maintain and
administer.
In the event, the withering away of pornography promised by the more
open aesthetic avowing of sexuality has not occurred. Quite the reverse: the
era of Lawrence and Miller, Burroughs and Bataille, has witnessed an
expanded dissemination of pornography and a multiplication of its forms.
The reason for the failure of the derepressive hypothesis lies, we would
 The Limits of Law Reform 195

suggest, in the fact that pornography is not a product of repression in the

first place, but an autonomous practice of sexuality - a biblio-erotics.
Lawrence's lyrical use of obscenity did not herald the imminent purification
of the field of erotic representations. It was a sign of that unpredicted
surfacing of pornography in the educative novel for which popular educa-
tion would provide an unstable - because not yet aesthetically equipped -
mass audience. Through the channel provided by the pedagogical deploy-
ment of the new literary erotics, an unplanned exchange was set up between
the literate, masculine pornography of perversions and an increasingly
photographic popular pornography. From this exchange have issued two of
the most important changes in the modem pornographic field.
On the one hand, it has conditioned the emergence of the genre of
'respectable' soft pornographic magazines and novellas, mixing easily con-
sumable erotic photography with literary essays and stories and directed at
a vastly expanded audience network that remains, nonetheless, predomi-
nantly masculine. On the other hand, this exchange has also made possible
the migration of the esoteric forms of sexual self-identification, character-
istic of the pornography of perversions, to the popular market. Hence the
proliferation of specialised magazines directed at the exotic sexualities of a
predominantly masculine network of micro-audiences. These works wear
the label of hard-core pornography.
At one level, then, the distinction between art and pornography laid
down in the celebrated literary trials of the mid-century was made
redundant even as it was being decided. In the unstable zone of exchanges
which the educative erotic novel opened up between esoteric and popular
pornography, it is the distinction between hard and soft-core pornography
that has become critical for law and social policy. At another level,
however, the aesthetic discrimination has acquired remarkable importance
of another kind, having being taken up by Western judiciaries as the key to
distinguishing hard from soft- restrictable from non-restrictable- pornog-
raphy. In other words, with the shift in infra-legal regulation from a
medical to a pedagogical register, the aesthetic criterion has become
central to the legal-pedagogical administration of erotic representations.
This governmental re-deployment of the erotic and ethical threshold sets
limits to and governs the direction oflaw reform. We develop this theme in
the next chapter, but may observe here that the limits are clearly visible in
the cases of Mishkin v. New York and Ginzburg v. United States heard on
appeal before the US Supreme Court in 1966. The convictions of Mishkin
and Ginzburg were upheld, but it is the manner in which the Court func-
tioned as the site for a particular process of social deliberation and judge-
ment which is of interest.
196 On Pornography

On the one hand, the liberal strategy of deregulation is passionately

advocated by the dissenting judges. They speak indignantly of the 'three-
year sentence imposed on Mishkin and the five-year sentence imposed on
Ginzburg for expressing views above sex'. And, citing Krafft-Ebing's
Psychopathia Sexualis as authority, they summarise the testimony of wit-
nessing priests, psychologists and literary critics in the following terms:

Some of the tracts for which these publishers go to prison concern normal
sex, some homosexuality, some the masochistic yearning that is probably
present in everyone and dominant in some. Masochism is a desire to be
punished or subdued. In the broad frame of reference the desire may be
expressed in the longing to be whipped and lashed, bound and gagged,
and cruelly treated. Why is it unlawful to cater to the needs of this group?
They are, to be sure, somewhat offbeat, nonconformist, and odd. But we
are not in the realm of criminal conduct, only ideas and tastes. Some like
Chopin, others like 'rock and roll'. Some are 'normal', some are maso-
chistic, some deviant in other respects such as the homosexual. Another
group also represented here translates mundane articles into sexual sym-
bols. This group, like those embracing masochism, are anathema to the
so-called stable majority. But why is freedom of the press and expression
denied them? Are they to be barred from communicating in symbolisms
important to them? When the Court today speaks of 'social value', does
it mean a 'value' to the majority? Why is not a minority 'value' cogniza-
ble? The masochistic group is one; the deviant group is another. Is it not
important that members of those groups communicate with each other?
Why is communication by the 'written word' forbidden? If we were wise
enough, we might know that communication may have greater
therapeutical value than any sermon that those of the 'normal' commu-
nity can offer.

(Ginzburg v. United States, p. 489)

In this use of sexology to demonstrate the harmless nature of pornography,

to place it in the domain of representation and individual moral judgement
and to claim an emancipatory and de-repressive therapeutic value for it, we
find the main elements of the philosophical liberal programme.
On the other hand, in Mishkin v. New York, the concurring majority,
whose judgement hinged on the way in which Mishkin commissioned his
books and targetted their audiences, was concerned with a different use of
sexological literature:
 The Limits of Law Reform 197

No substantial claim is made that the books depicting sexually deviant

practices are devoid of prurient appeal to sexually deviant groups. The
evidence fully establishes that these books were specifically conceived
and marketed for such groups. Appellant instructed his authors and artists
to prepare the books expressly to induce their purchase by persons who
would probably be sexually stimulated by them. It was for this reason
that appellant 'wanted an emphasis on beatings and fetishism and cloth-
ing - irregular clothing, and that sort of thing, and again sex scenes
between women; always sex scenes had to be very strong'. And to be
certain that authors fulfilled his purpose, appellant furnished them with
such source materials as Caprio, Variations in Sexual Behaviour, and
Krafft-Ebing, Psychopathia Sexualis.

(Mishkin v. New York, pp. 509-10)

The deep historical reciprocity in Western confession-based technologies

between the knowledge of sexuality and the pleasure gained from it renders
this second use of Krafft-Ebing no less exemplary than the first. It is a
representative instance of those larger historical processes in which porno-
graphy transposed the already ambivalent sexologies into the erotic register,
and in which the expansion of popular literary education has been accom-
panied by a proliferation of specialised pornographies and audiences.
It is meaningless to propose to deregulate the circulation of erotic repre-
sentations once they cross the thresholds of aesthetic sensibility and thera-
peutic sexuality. The forms in which it is possible to become conscious of
sexuality and to achieve its therapeutic expression are themselves already
artefacts of a regulated circulation of erotic representations. It is in this
context that the court in Mishkin in fact extends the regulatory domain first
announced in Hicklin by making obscenity relative to the level of develop-
ment of the audience's erotic sensibility ('sexual maturity'), as revealed by
book commissioning guidelines and marketing procedures.
For the same sorts of reason, however, it is equally meaningless to
propose to tighten obscenity law on the basis of pornography's misrepre-
sentation of women's sexuality. Erotic representations are not governed by
some notional true sexuality but by their role in the pedagogic management
of an array of historically determinate sexualities. However, as we shall see
in the final two chapters, given the gender specificity of pornographic
audiences, this by no means rules out the possibility of making the erotic
sensibility of 'men' a specific target in the regulatory field.
7 United States Obscenity
Law
LIBERALISM, PHILOSOPHICAL AND GOVERNMENTAL

The philosophical categories used by liberal jurisprudence for understand-

ing the regulation of pornography, as we have now shown, have their
historical limits. Attempts to reform the law on the basis of these categories
- the general mechanism of the harm condition, the distinction between
morality and law, and the aesthetic idea of representation - meet a series of
obstacles. Individuals 'experience' pornography, we have argued, not as
universal moral subjects but as the bearers of specific ethical competences
or abilities, purposively but unevenly distributed in populations through
governmental pedagogies. The fact that pornography has historically formed
part of a masculine auto-erotics further undermines the attempt to separate
morality from law through appeal to a universal subject of moral judge-
ment. Finally, the prospect that sexological knowledges might allow a
detached view of pornography starts to look less rosy once the confessional-
incitatory structure of these know ledges becomes clear. In this chapter we
develop the consequences of these observations for the category of indi-
vidual 'rights'.
This involves shifting our jurisdictional focus to the United States of
America where centre stage is occupied by a certain philosophical concep-
tion of rights, the main assumptions of which are that rights of expression
are the intrinsic possession of the individual, whose essence is given inde-
pendently of social institutions or the state, and that the proper role of law
is to 'represent' the rights of the individual, including his or her independ-
ence of thought and conscience. Even though the law is assumed to have
this ideally representational function, the subject of rights is imagined to
exist in a constant torsion with a sovereign power in that the law, like other
instruments of government, is also ultimately a vehicle of state interests.
It is possible to rework this conception by re-examining the relationship
between philosophical liberalism and the practices of liberal government.
We can begin by asking: What happens to the notion of rights once its
foundation - the individual moral subject - loses its autonomous and
transcendental character as a result of the historicising analysis that we have
been pursuing? To open up this question, let us ask another: What are we to

198
 United States Obscenity Law 199

make of the fact that in the United States the regulation of pornography is
powerfully inflected by questions of constitutional rights, questions which
do not arise in English law? A key factor in the legal regulation of porno-
graphy in the United States, in contrast to England, is the existence of a Bill
of Rights, in particular the First Amendment to the Constitution, which
states: 'Congress shall make no law ... abridging the freedom of speech or
of the press'. 1 This Amendment has been accepted within judicial processes
as applying to the states, and to any form of governmental action, not only
legislative statutes (Gitlow v. New York (1925)). Many commentators have
assumed that this constitutional mandate does something which- according
to our analysis of various contexts thus far - is impossible: namely, ground
the law and its application in the recognition of a given moral right. The
First Amendment is frequent! y referred to as a transcendent guarantee of the
right of expression, affording protection against any attempt by the state to
encroach upon the privacy of free thought and individual conscience. From
this point of view, the guideline to follow on obscenity law reform seems
clear: remember the individual's inherent right to liberty of expression,
determine if and where the law infringes upon that right, and remove the
infringement so as to restore the right to free self-expression.
Within the context of constitutional rights of expression, the assumptions
of liberal jurisprudence issue in what has been termed First Amendment
'absolutism'. This position is perhaps never represented in its pure form,
since even its most enthusiastic advocates acknowledge some exceptions to
the constitutional protection of speech. These exceptions include acts of
speech or press which are deemed to inflict injury (libel), disturb the public
peace, constitute a criminal conspiracy, create a 'clear and present danger'
that some proscribed action will result from the utterance, or to be obscene. 2
The words of the famous Justice Holmes from 1919 are often cited on this
matter: 'the 1st Amendment ... cannot have been, and obviously was not,
intended to give immunity for every possible use of language' (Frohwerk v.
United States (1919), p. 206). At first, the legal policing of obscenity was
not taken to pose any constitutional question in relation to the freedom of
speech. First Amendment absolutism in relation to obscenity is a relatively
recent phenomenon. It was made possible, we have suggested, by the
widescale pedagogic dissemination of those aesthetic, psychological and
sexological norms which" allow the personal use of sexual materials to be
valorised as a domain of intellectual and emotional expression, one which
individuals feel they should be free to explore and organise for themselves.
In the wake of that dissemination, since the middle of the twentieth century,
First Amendment 'absolutists' have been able to insist that it is essential to
200 On Pornography

hold the line against the apparently ever-present danger that governmental
and political interests will infringe the individual's fundamental right of
free expression in relation to sexual materials.
As we saw in the preceding chapter, philosophical liberalism attempts
to protect individual rights by invoking the harm condition as a general
criterion for their legitimate exercise. So, for example, David A. J. Richards
argues that, whatever its historical origins, the First Amendment represents
a moral theory, namely, 'the greatest equal liberty of communication com-
patible with a like liberty for all' (1980, pp. 100-1). Hence, it seems,
constitutional rights involve a familiar balancing act. They include 'both a
right to communicate and a right to be the object of communication' (p.
101). One's right of expression must be adjusted to the right of others to
choose whether to be constructed as an audience. Sexuality is seen to be an
important content of 'expression', no matter whether one is dealing with
serious art and literature or pornography. However, it is acknowledged,
harms may flow from pornography if subjects lack developed powers of
rational choice. Richards thus accepts that protection is justified for minors
and that 'time, place and manner' restrictions (affecting distribution and
display but not the content of works) are tolerable to prevent materials being
foisted upon unconsenting adults (p. 121). However, the law should not
interfere with acts of expression which cause no harm to others. Attempts to
regulate the contents of communications by law are said to be incompatible
with the principle of equal liberty (pp. 101-2). Echoing some of the classic
formulations of nineteenth-century philosophical liberalism, Richards
claims that we can never be sure of knowing what the truth is, and the most
likely way of approximating it and preserving a democratic society is to
maintain a free marketplace of ideas (cf. Haiman, 1981, p. 7). For Richards,
the First Amendment rests on a moral basis that cannot be reduced to 'a
utilitarian calculus of the political usefulness of a debate on divergent points
of view':

Rather, the First Amendment rests more fundamentally on the moral

liberties of expression, conscience and thought; these liberties are funda-
mental conditions of the integrity and competence of a person in master-
ing his or her life and expressing this mastery to others. The freedom to
determine the contents of one's communications is fundamental to this
mastery. Without this freedom, one lacks a basic ingredient of self-
determination. (p. 120)

The freedom to decide upon the 'sexual' content of those communications

which one creates or receives is, according to Richards, an essential part of
 United States Obscenity Law 201

this more general freedom of expression (p. 120). In a familiar argument,

obscenity law is treated as a desperate but doomed attempt to give a
repressive morality legal force - to deny the true understanding of the
varieties of sexual experience and 'the human capacity to master one's
sexual life in the light of independent judgement' (p. 120). This denial has
supposedly been acted out in the Supreme Court's obscenity decisions,
especially in a series of cases in 1973, including Miller v. California in
which the obscenity standard was reformulated. According to Richards,
these decisions incorrectly treated obscenity as falling outside First Amend-
ment protection and endorsed a particular moral and political view at the
expense of other views and capacities for experience, under the guise of
making a morally neutral legal judgement (pp. 111-121). The error can
only be redressed by recognising that pornography should, like other forms
of expression, be protected under the First Amendment, and by bringing
state prohibitions or regulations of communications into line with the prin-
ciple of greatest equal liberty (p. 113). 3
A position verging on First Amendment absolutism is identifiable also in
certain opinions formulated in the courts, it having been contended that the
judiciary has a duty to uphold an essential principle of justice embodied in
that Amendment if it is not to endorse the only apparent alternative, censor-
ship. This position has been adopted by some members of the Supreme
Court, in particular by Justices Black and Douglas. In his concurring opin-
ion in Smith v. California (1959), for example, Mr Justice Black states:

Certainly the First Amendment's language leaves no room for inference

that abridgements of speech and press can be made just because they are
slight. That Amendment provides, in simple words, that 'Congress shall
make no law ... abridging the freedom of speech, or of the press'. I read
'no law ... abridging' to mean no law abridging. The First Amendment,
which is the supreme law of the land, has thus fixed its own value on
freedom of speech and press by putting these freedoms wholly 'beyond
the reach' of federal power to abridge. No other provision of the Consti-
tution purports to dilute the scope of these unequivocal commands of the
First Amendment. Consequently, I do not believe that any federal agen-
cies, including Congress and this Court, have power or authority to
subordinate speech and press to what they think are more important
interests.
(pp. 157-9, footnote omitted)

A similar theme is expressed by Mr Justice Douglas in his dissenting

opinion in Paris Adult Theatre 1 v. Slaton (1973):
202 On Pornography

When man was first in the jungle he took care of himself. When he
entered a societal group, controls were necessarily imposed. But our
society - unlike most in the world - presupposes that freedom and liberty
are in a frame of reference that makes the individual, not government, the
keeper of his tastes, beliefs, and ideas. That is the philosophy of the First
Amendment; and it is the article of faith that sets us apart from most
nations in the world. (p. 73)

Such views have been influential in the judicial regulation of pornography

but not, as we shall see, determinative. 4
One of the most thoroughgoing attempts to put the tenets of philosophical
liberalism into practice in the governmental sphere within the USA is made
in The Report of the Commission on Obscenity and Pornography, presented
to the President and Congress in 1970. The Commission was chaired by
William B. Lockhart, whose jurisprudential contributions on obscenity law,
coauthored with Robert C. McClure, we discussed in the previous chapter. 5
The Commission's central recommendation contains an argument for
deregulating sexual materials in recognition of a right to expression that is
given with the individual and limited only by the harm condition: 'In
general outline, the Commission recommends that federal, state and local
legislation should not seek to interfere with the right of adults who wish to
do so to read, obtain, or view explicit sexual materials' (p. 57). 6 In the
Lockhart Report, the individual's intrinsic right of expression is identified
with the adult's entitlement to read or see explicit sexual materials (p. 58).
The production and circulation of such materials are in tum seen as orient-
ing themselves towards the exercise of that right, deriving from it their own
legitimacy. First Amendment guarantees are thus taken as properly extend-
ing beyond the individual expression or reception of meaning to encompass
technological practices and commercial relations of communication. It fol-
lows, for the Commission, that just as laws forbidding adults from obtain-
ing, reading or viewing sexual materials of their choice should be repealed,
so, too, should laws prohibiting the sale, distribution and exhibition of
obscene materials (pp. 62, 75--6). It is assumed that the principle of rational
choice embodied in the individual is replicated at a general level of social
communication where the mechanism of 'the competition of ideas in a free
market place' (p. 56) will ensure that the production, distribution and use of
sexual materials will ultimately be unproblematic because self-regulating.
The Report states that the 'spirit and letter of our Constitution tell us that
government should not seek to interfere' with the rights of free speech and
press which include 'the right of each individual to determine for himself
what books he wishes to read and what pictures or films he wishes to see'
 United States Obscenity Law 203

and 'the right of writers, publishers, and booksellers to serve the diverse
interests of the public', unless a 'clear threat of harm' dictates otherwise (p.
60). If government is to avoid '[c]oercion, repression and censorship' (pp.
56-7), it must deregulate the use of sexual materials while controlling their
sale to the young and their presentation to unconsenting adults (pp. 76-9).
The Report's recommendations are supported by two interrelated argu-
ments, both of which we have encountered in other settings. It is said that
there is no evidence to show that exposure to explicit sexual materials is
harmful in the sense of adversely affecting character, attitudes or conducts,
or leading to anti-social or criminal behaviour (pp. 61, 169-309). It is also
claimed that the 'problem' of pornography and obscenity is in fact created
by over-regulating the field of sexuality and that it 'stems from the inability
or reluctance of people in our society to be open and direct in dealing with
sexual matters' (p. 53). Supposedly, this psychological incapacity gives sex
a magical, 'non-natural quality', warps the expression of sexuality, and
makes difficult the task of 'teaching children and adolescents to become
fully and adequately functioning sexual adults' (p. 53). Pornography be-
comes a problem, it is suggested, because it confronts people with their own
fears, representing to them directly the 'danger and unpleasantness' which
they associate with sex (p. 312). In other words, pornography has become
the scapegoat-for Americans' 'confusion and ambivalence about sexuality'
(p. 311).
For these reasons, obscenity law is seen as a category mistake, to be
rectified by 'a massive sex education effort' (p. 54) as a counterpart to the
strategy of deregulation. This project should involve government, schools,
families, churches, health practices, citizens' groups and the media, work-
ing with people of all age groups and in all sectors of society (pp. 54-7), the
aim being to create healthy attitudes towards sexuality, provide a sound
foundation for the basic social institutions of marriage and family, and
achieve 'an acceptance of sex as a normal and natural part of life and of
oneself as a sexual being' (p. 54). Once created, this informed relation
towards human sexuality would reduce interest in pornography - referred to
several times in the Report as nothing more serious than an inferior 'source
of information about sexual behaviour' (p. 312), to which people turn when
more open and honest forms of knowledge are not made available. This sex
education project would provide a 'powerful positive approach' (p. 55) to
the problem of pornography and obscenity, in contrast to the distorted
regime of representations associated with the failure 'to talk openly and
directly about sex' (p. 53) and the negative and counter-productive role
played by the law. There is of course a utopian element in the manner in
which the Commission pins its faith on a fundamental human capacity for
204 On Pornography

full and balanced sexual self-realisation. But the combining oflegal deregu-
lation with a stepping-up of pedagogic regulation suggests that liberal
jurisprudence in fact takes a more pragmatic view of the free reasoning
subject then its philosophical rhetoric allows.
Dispassionate attention to the problems underlying the Lockhart Report's
approach has perhaps been preempted as a result of its contemptuous
rejection by a conservative political administration. 7 Nonetheless, these
problems are severe. Because they stem from the assumptions of philo-
sophical liberalism, we can identify them summarily by recalling the main
findings of the preceding chapter. First, philosophical liberalism cannot
provide a rational basis for law reform by neutrally arbitrating the question
of whether pornography is harmful, because what is 'harmful' depends on
the particular historical circumstances in which pornography is problematised
and the particular intellectual; ethical and regulatory means used to
problematise it. The defence of pornography as a basically harmless, if
distorted, representation of sex is not separable from the Report's activation
of certain sexological and psychological norms which (as we shall see in the
final chapter) have come under attack in other contexts for condoning
discriminatory and harmful sexual interests, attitudes and behaviours. Sec-
ond, the capacity to come to terms with sexual materials 'through individual
resolutions of personal confrontations with human experience' (p. 62),
which for the Report provides the ground for a general deregulation, repre-
sents a level of ethical competence not universally distributed throughout
the population. Third, the know ledges of sex which inform the Report place
it in an ambiguous relation to the pleasures and entertainments it investi-
gates. The Commission assumes that if accurate information is dissemi-
nated, sexual enlightenment will follow. While such a recommendation
may seem naively to overlook the problem of pathological responses to
sexual materials, in fact it reproduces the confessional strategy whose
medical, sexological and psychological role in forming auto-erotic sexual-
ity is already familiar to us from historical analysis of the pornographic
field. Urging recourse to a process of information-giving as the panacea for
all evils of sexual ignorance, the Report insists on establishing sex as
something which all must learn has been repressed, hence as something to
be attended to ever more conscientiously within the family and commu-
nity.8It thus confirms a suspicion raised in the preceding chapter: that such
arguments for legal deregulation are typically covert and confused argu-
ments for a (pedagogic) reregulation of pornography, dependent on unac-
knowledged 'governmental' assumptions.
The beliefs about the person expressed in philosophical liberalism are
less 'absolute' than they might appear. In fact, they are themselves already
part of a governmental process which sustains yet also - precisely because
 United States Obscenity Law 205

the implementation of such beliefs always appeals to some particular set of

pedagogically constructed personal abilities - sets limits to them. So, for
instance, the harm condition accepted within philosophical liberalism de-
pends upon being spelled out in practice, and as soon as this occurs rights
of expression are limited according to differential intellectual and ethical
capacities which certain 'receivers' of materials are presumed to have. We
can thus insist that the Lockhart Report's delineation of rights of expression
and communication does not transcend the regulatory field in which par-
ticular cultural norms and ethical techniques are disseminated; particularly
the techniques of confession and de-repression in which individuals are
supposed to learn that these rights contain personal truths misrecognised
thus far by the law but now to be fearlessly avowed. The gaze of philosophi-
calliberalism might be raised above the horizon of history, but its feet are
stuck in the more messy historical clay overseen by its governmental twin.
In the framework of our historical and positive account, how may rights
of expression be re-defined? We identify here three interlocking themes
which inform the following sections' more detailed treatment of the man-
agement of rights of speech and press in the pornographic field.

The Positivity Of Legal Rights And Means

We shall analyse rights not as intrinsic moral properties of the individual

which are simply recognised by the law, but as 'interests' created by
specifically legal means. Rights are constructed through legislative and
judicial procedures of decision-making. Seen in this way, rights - like
liabilities - are devices for regulating conducts, devices which in some
measure individuals are able to see themselves as 'owning'. Establishing a
course of relief, action, or duty of forbearance, rights are ascribed to persons
for specific not general purposes. Only by dint of particular forms of
legislative and judicial definition operative within 'juridified' cultures do
individuals become specified as legal personalities capable of 'possessing'
rights. As to the regulation of pornography, the individual- far from being
treated as the unified source of general moral capacities and rights - is
ascribed through legislative and judicial decision-making procedures par-
ticular capacities to pursue particular interests in the production, circulation
or use of sexual materials.

The Overlap Of Legal Rights With Extra-Legal Norms and Objectives

This emphasis on the positive effect of legal processes does not mean that
legislative and judicial decision-making depends upon entirely mechanical
and self-enclosed processes of legal reasoning. The construction and de-
206 On Pornography

limitation of rights bring into play extra-legal norms and objectives. These
wider considerations do not emanate from the essential rights and attributes
of the subject as these are conceived in philosophical liberalism; rather,
rights are relative to certain purposes of legislation and administration
which are themselves informed by 'socially determined policy objectives'
(Hirst, 1980, pp. 96, 104). In the regulation of pornography, the legal
administration of rights of speech and press takes into account both govern-
mental interests in maintaining the level of free expression, involving
access to highly diverse uses of media, and governmental and community
interests in minimising the harms that may be associated with pornography
for certain groups.
Rights such as those granted in free expression are thus key forms in
which various extra-legal norms and objectives may be empowered at law.
They are important means of settling disputes when questions of the valid-
ity or interpretation of statutes arise (Hirst, p. 97), as frequently occurs in
relation to the constitutionality of obscenity laws in the United States, or
when definition is required of the scope of action available to parties
pursuing particular interests in or actions against pornography. Despite the
philosophical ideal of a pure or absolute form of right, legal rights may be
contradictory: the specification of rights of expression involves a balancing
act between competing claims and interests in the regulation of pornogra-
phy. In other words, rights are not anterior to the mechanisms adopted to
solve practical problems; as attributes of legal personality they relate to a
plurality of objectives and are not 'all of a piece' (Cousins, 1980, p. 119).
Because they are created for particular purposes, legal rights are limited in
their reach - in contrast to the image of universal and inalienable righ.ts
publicised by philosophical liberalism. In fact, we should not expect social
problems identified in the production and circulation of pornography to be
solved purely by the legal administration of rights and liabilities; this
administration depends for its effect partly upon extra-legal formations of
personal capacities, knowledges and conducts.

Rights Of Expression Permit Exchange Between Different Modes Of

Regulating Pornography

Rights such as the right of free expression are regulatory- but also person-
ally formative - mechanisms which provide competent individuals with a
certain leeway to organise their own conducts. The legal and governmental
mechanisms which construct and delimit rights of expression therefore play
a positive role in the patterning of personal and institutional capacities. In
other words, the nature and function of rights of expression in the porno-
 United States Obscenity Law 207

graphic field cannot properly be grasped by the terms of the philosophical-

liberal model opposing state to individual subject and law to morality.
Philosophical arguments for deregulating the moral domain in favour of
an essential right of free expression can in fact be relativised by being
recontextualised as part of a broader practice whereby government supports
the wide-scale dissemination of techniques of self-management. Far from
being absolutely antithetical to one another, the liberal and the governmen-
tal have intertwined, philosophical liberalism contributing a justificatory
rhetoric to the historical adjustment in which medical and moral policing
has been replaced by a sophisticated strategy of self-government. This
reciprocity, unsanctioned by the canons of political philosophy, has been
dependent on pedagogic technologies which promote amongst individuals
within large sectors of the population the desire and disposition- consonant
with politically developed public objectives - to be self-governing.
The legal administration of rights in speech and press thus allows the
more interventionist kinds of regulation to target those forms of conduct
which cannot adequately be managed by the mechanisms of self-govern-
ment.9 Rights in speech and press, depending on pedagogic, aesthetic and
ethical modes of self-formation and self-management, are delimited in the
law's administration of obscenity as a historical category which varies
according to different distributions of capacities, interests and levels of
maturity.
Legal systems within the liberal state support a variety of mechanisms,
ranging from the most directive forms of policing to the most discretionary
processes of self-government, allowing the lines between them to be con-
tinuously re-adjusted according to calculations of public policy. In the
field of pornography and obscenity, the emphasis has shifted historically
between mechanisms of legal sanction and pedagogic administration of
psychological and aesthetic disciplines for forming sensibility and manag-
ing the self. In this context, the right to free expression is no intrinsic
property of the individual which the law must represent against intrusive
state interests, but a normative technique for negotiating the relations
between juridical policing and self-regulation. In relation to sexual materi-
als, this right is a regulatory device typical of the practices of liberal
government. Its administration involves an exchange whereby the law -
opening into systems of prohibition and sanction, surveillance and
summary jurisdiction - helps manage those problem conducts which
welfare and education cannot handle.
At the same time, from these infra-legal domains the law draws norms by
which to distinguish between the proscribed and the permitted and - in the
constitutional context - between the proscribed and the protected. The
208 On Pornography

liberal governmental regulation of obscenity thus relies centrally on the

administrative, procedural and intellectual technologies of the law whose
operation sets limits to the actions both of individual and state (or other
collective) interests seeking to work through them. In other words, the
administration of rights in the field of pornography and obscenity is carried
out through a variety of permissions, obligations and restrictions to negoti-
ate the mobile line between regulation by law and regulation by self.

JUDICIALLY CALCULATED RIGHTS: FROM MEDICAL POLICING

TO PEDAGOGIC MANAGEMENT

With these revisions in mind, we embark on a more detailed reconsideration

of the institutional administration of rights in speech and press with regard
to the regulation of pornography in the United States. We can summarise
these revisions in the proposition that in the institutions concerned, rights
are operationalised as a mechanism for balancing the tactics of policing
with forms of self-management.
The array of governmental mechanisms includes legislation (penal codes
and statutes), the courts and various law enforcement agencies. These
mechanisms which neither flow uniformly from the philosophical notion of
right nor, despite the claims of libertarians, from the will of some centre of
power, indicate that the regulation of pornography operates through varied
and legally adjudicated forms of authority and decision-making. These
forms require negotiations of social norms and policy objectives.
The network of federal, state and municipal legislation covers numerous
activities including the producing and publishing or broadcasting of ob-
scene works in various media; distributing such works through sale or loan;
advertising and exhibiting sexual materials, using the mails, delivery ser-
vices and other methods of transportation and communication; customs
procedure and the importation of obscene materials; and so on. 10 Obscenity
legislation is subject to constitutional constraints and is thus influenced by
the Supreme Court's obscenity standards. Statutes assign a wide range of
tasks to various kinds of law enforcement agencies, while limiting their
powers in specific ways. So, for example, these tasks include the promul-
gating of regulations in accordance with federal statutes, regulations whose
constitutional validity is in tum subject to judicial appeal and review. 11
State and federal courts deal with actions which may infringe laws. They
also contribute to the formation of laws by providing standards for deter-
mining obscenity and by considering the constitutionality of particular
items of legislation brought before them. If, as in American Booksellers
 United States Obscenity Law 209

Association v. Hudnut (1984) which we discuss in the next chapter, a court

decides that under Article III of the Constitution a 'case or controversy'
exists, a law, even though it has not yet been applied, is considered 'ripe for
adjudication' of the constitutional issue. This intensive practice of constitu-
tional validation may seem to make obscenity law in the United States quite
distinct from the English common law system, particularly since - while
there are landmark obscenity cases in the United States - there is in that
country no precise equivalent to the ceremonial English show trial before
judge and jury, the major constitutional decisions being made by the Su-
preme Court. However, in practice constitutional rights are deployed in a
way that makes the workings of United States law on obscenity comparable
to those of English common law. This deployment of rights depends not
solely on the prior existence of constitutional principles, but on the histori-
cally conditioned and exacting interpretation of such principles. Rather than
a 'representation' of the individual's given right of expression, the work of
judicial interpretation and decision in relation to obscenity is a specialised
process of constitutional 'calculation'. In this process rights are adminis-
tered in relation to determinate objectives of government as these are
measured through specifically legal forms of reasoning, establishing the
context for an exchange between legal and infra-legal disciplines. Adopting
particular cultural, governmental and pedagogic norms, legislatures and
courts recognise the need for certain forms of self-regulation; at the same
time, they relay into the domain of police a responsibility for dealing with
various kinds of conduct deemed too difficult to manage in a self-regulatory
mode.
The constitutional calculations made in the courts entail the judicial
formulation and application of normative standards, comparable with the
common law construction of criteria for regulating obscene publication.
Indeed, the United States law continues to overlap extensively with English
common law on obscenity from which it derived. The Hicklin test, with its
embodied medical-moral norm, held sway in the United States for more or
less the same period as in England. 12 Moreover, psychological and aesthetic
criteria made major inroads into judicial calculations in the United States by
the mid-twentieth century, just as they did in England. Nonetheless, a
significant difference obtains between the legal administration of obscenity
in the two countries: in the United States, the question of whether obscenity
is something which the state should regulate becomes a specific issue in the
courts, rather than in parliament. Is the emergence of this issue in the courts
a sign that at last the law is coming to realise that as an instrument of state
it should not trespass upon the domain of fundamental moral rights?
The question of whether obscenity law is constitutionally valid in relation
210 On Pornography
to the First Amendment is posed squarely for the first time in the Supreme
Court, in Roth v. United States ( 1957). 13 The Court notes that it had always
assumed obscenity could legitimately be regulated by law (p. 481 ). While
Roth contends that obscenity is 'expression not excepted from the sweep of
the provision of the First Amendment' protecting speech and press, the
Court rules that obscenity is 'not expression protected by the First Amend-
ment' (p. 492). The Court's deliberations are consonant with longer-term
judicial calculations allowing the administration of obscenity to respond to
changing social norms and policy objectives. It does not resolve the prob-
lem of whether obscenity laws are constitutional by attempting to define
once and for all the object being regulated; neither does it treat the appellant
as a moral subject possessing an intrinsic right to expression. Rather, it
enunciates standards which are - predictably - normative, and which allow
obscenity to continue to be regulated as a variable category.1 4
The test which prevailed as the Roth standard from 1957 to 1973 drew
upon criteria already established in the courts and was in turn amplified in
subsequent opinions (Jacobellis v. Ohio (1964) and A Book Named 'John
Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of the
Commonwealth of Massachusetts (1966)). According to this test (The Su-
preme Court Obscenity Decisions, p. 8), to be obscene, material had to:

(a) be patently offensive to contemporary community standards, going

substantially beyond customary limits of candour, and
(b) appeal to the prurient interest of the average person, and
(c) be utterly without redeeming social value.

The categories of 'community standards', 'the average person', 'prurience'

and 'social value' serve to ascribe rights to or withhold them from legal
personalities. They are devices for allowing the threshold between legal
policing and self-management to be negotiated in the calculation of these
rights. We can trace this process of negotiation by focussing on the way in
which medical notions of harm are by the time of Roth giving way to
psycho-aesthetic notions of value and maturity.
In Roth, the Court alleges (incorrectly) that under the Hicklin test obscen-
ity was judged by 'the effect of isolated passages upon the most susceptible
persons' (p. 489). It is stated that this test now 'might well encompass
material legitimately treating with sex and so it must be rejected as uncon-
stitutionally restrictive of the freedoms of speech and press' (p. 489).
Various court decisions have already rejected this standard, replacing it
with the test of 'whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole
 United States Obscenity Law 211

appeals to prurient interest' (p. 489). We recognise in this test of 'prurience'

the emerging aesthetic emphasis on individuals' ability to mediate and
order their own sexual interests and to balance the excitations of erotica
with an aesthetic appreciation of the work as a whole. This test displaces the
earlier medical policing which was concerned with the pathological effects
which pornography - even in fragments - might have in the wrong hands .
Roth is therefore symptomatic of a transition in legal regulation from a
regime of medical policing to one of (pedagogically) managed pleasure. In
Roth, the Court reiterates elements of sexological and aesthetic discourses,
stating in truly Lawrentian style that sex is a 'great and mysterious motive
force in human life', a 'subject of absorbing interest to mankind through the
ages' and 'one of the vital problems of human interests and public concern'
(p. 487). It is in such transcendent terms that works dealing with sex may
now be seen to have 'value'. Constitutional safeguards, it is said, must exist
for works which have a degree of value, even 'the slightest redeeming
social importance' as statements of ideas (p. 484).
However, the Court also draws a line between this valuable interest in sex
and obscenity. Without attempting to define obscenity other than as 'mate-
rial which deals with sex in a manner appealing to prurient interest'
(p. 487), the Court indicates in a completely routine way that there exists a
class of such materials bereft of social value. Thus the judgement of pruri-
ent interest places a limit of sorts on the deregulation of access to sexual
representations. The Court rejects the claim that obscenity laws violate the
free speech provisions of the Constitution in seeking to punish sexual
'thoughts' which are not related to any anti-social 'conducts'. It does so by
implicitly accepting the validity of governmental concerns with checking
the harms of obscenity, concerns which run through previous statutes,
policies and decisions. 15 In thus combining a norm of aesthetic and
sexological value with a norm justifying state interests in minimising harms,
the Courts allows the balance between self-management and legal policing
to be maintained and adjusted.
In adopting aesthetic criteria, the courts at the same time perpetuate a
welfarist concern with obscenity as a variable and potentially harmful
phenomenon. To amplify this point we turn to a New York District Court
trial of 1959 in which a publisher and distributor take action to restrain the
enforcement of a Post Office Department decision that a novel, Lady
Chatterley's Lover, is obscene and therefore non-mailable, or to have the
statute itself declared unconstitutional (Grove Press, Inc. v. Christenberry).
The Court identifies the novel as a work of literature, entitled to the
protections guaranteed to freedoms of speech and press by the First Amend-
ment (p. 503), holding that the book does not appeal to prurient interest and
212 On Pornography

does have literary merit (pp. 499-502). As in the English trial of the same
novel, this merit is established in terms borrowed directly from Romantic
literary criticism. Lady Chatterley's Lover is said to be a serious literary
work in its 'theme', in which sexual representations are open to symbolic
interpretation, and in its use of 'character', 'plot', 'situation' and style ('fine
writing and ... descriptive passages of rare beauty') (pp. 488, 500). Even
if it is assumed that some passages 'taken in isolation tend to arouse
shameful, morbid and lustful sexual desires in the average reader', they are
integral to 'the development of theme, plot and character' (p. 500). Here it
is evident that the legal criterion according to which the work must be
judged 'as a whole' derives from a literary critical conception of the unity
that distinguishes the true work of art. Most courts (according to Judge
Frank in his concurring opinion in United States v. Roth p. 825) do not
consider the intention of the author, publisher or distributor independently
of the effect which a work which is found to be obscene has on those who
read or view it. However, it is worth noting that in Grove Press the author's
intention, understood in aesthetic terms, is taken as relevant: the sincerity
with which this intention is 'expressed in the manner' in which the book is
written has a great deal to do with deciding the question of literary and
intellectual 'merit' (p. 502). Lawrence's 'A Propos of Lady Chatterley's
Lover' and 'Pornography and Obscenity' and his claim that pornography,
unlike literature, tries 'to insult sex, to do dirt on it', are cited approvingly
(pp. 500--1) by the judge to support the view that the novel is not 'dirt for
dirt's sake'.
This canonising work of citation is a measure of the extent to which the
aesthetic practice of writing, reading and shaping the sexual self- once the
esoteric ethic of a refined few -has by the later 1950s been sufficiently
widely distributed to allow for a legal relaxing of policing in favour of
pedagogy. Indeed, the logic of the court's decision is explicitly distribu-
tional . Detailed reference is made to the institutional arrangements of
publication, dissemination and reception which distinguish the literary from
the pornographic: 'A work of literature published and distributed through
normal channels by a reputable publisher stands on quite a different footing
from hard core pornography furtively sold for the purpose of profiting by
the titillation of the dirty minded' (p. 503). The Court notes that the adver-
tising and promotional materials treat the novel as serious literature without
any attempt 'to pander to the lewd and lascivious minded for profit', that the
book is distributed 'through leading bookstores throughout the country' and
that it is treated seriously by the press (pp. 497, 502). These references show
that the aesthetic discipline is admitted as both a critical lexicon or tech-
nique of reading now able to be applied to erotic literature and as the
guarantee of a legitimate practice of production and distribution. 16
 United States Obscenity Law 213

From Roth and Grove Press we thus see that the emergence of the
question whether obscenity laws are constitutionally valid, together with
new decisions allowing considerable latitude in the circulation of serious
sexual literature, need not be treated as moves to deregulate the use of
erotica in recognition of a general moral right of expression. Rather, these
cases exemplify a shift from one form of regulation, medical policing,
towards another which operates through the widescale but always less than
universal distribution of psychological, aesthetic and sexological techniques
for schooling the pleasures.
The Supreme Court's obscenity standards have, of course, continued to
be modified. The general test which has prevailed since 1973 was formu-
lated in Miller v. California, in which for the first time since Roth the Court
arrived at standards acceptable to the majority of its members. In the Miller
test, obscenity is determined according to the following criteria:

(a) whether the average person, applying contemporary community stand-

ards, would find that the work, taken as a whole, appeals to the prurient
interest, and
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic,
political or scientific value.

(Miller v. California, p. 24)

Miller differs from Roth in the following regards: the tastes of the average
person have shifted from the position of object of the obscenity test to that
of its legal reagent; those states wishing to ban obscenity under Miller are
required to define the sorts of depicted conducts which are proscribed; and
obscenity has become material without 'serious' value rather than being
'utterly without redeeming social value'. More important than these differ-
ences, however, is a commonality: the Supreme Court standards continue to
operate not as legal definitions but as variable operational norms. In Miller,
reference to 'community' standards and 'literary, artistic' or other value
indicates that the categories of prurience, offensiveness and value continue
to allow the legal threshold of obscenity to float in relation to a normative
distribution of capacities and interests among audiences. The examples
given of proscribed conducts indicate that the distinction between hard-core
and soft-core pornography has begun to displace that between art and
pornography as the main distinction for establishing whether materials are
entitled to protection under the First Amendment. The hard-soft distinction,
however, still works in aesthetic terms, allowing soft-core materials to be
214 On Pornography

regulated mainly through the exercise of personal and commercial discre-

tion. While the application of this distinction has expanded the types of
materials entitled to constitutional protection, the Miller test nonetheless
continues to permit proscription of materials and conducts in which certain
governmental responsibilities, such as preventing harms, are judged to
outweigh rights of free expression.
For philosophical liberals, the hand of censorship is still seen to be
working through the Miller changes. Richards (1980, pp. 111-12) claims
that Miller allows reliance on local obscenity standards and hence 'a variety
of constitutionally permissible restrictions' such that a person's First Amend-
ment rights can be constrained 'without appeal to a national standard'.
However, the Supreme Court standards, allowing the forms of regulation to
be modulated in relation to the variability of audience capacities and inter-
ests, are perhaps a more flexible and subtle instrument of regulation than
such criticism allows. The jury application of local standards which Miller
(pp. 30--1) permits may mean that the standards will vary with the educa-
tional and cultural dispositions of specific regions, leading to a systemic
pluralism (cf. People v. Wiseman (1983), and Staten v. State (1985)).
Similarly, in applying the Miller test, courts have allowed 'prurience' to be
judged relative to some clearly defined sexual interest of a group referred to
as 'deviant', provided there is evidence that the material in question is
designed for and primarily disseminated to such a group (cf. State v.
Summers (1985)). That there is continuing ambivalence and variation in the
management of obscenity is underlined by the fact that the provision of
community standards may be used to restrict the access of such groups to
specialised forms of erotica. It has also been possible in the courts to
interpret 'community standards' as a populations's perception of 'what is
generally acceptable in the community considering the intended and prob-
able recipients of the materials' (Saliba v. State (1985), p. 1186) 17
In some instances, the administration of obscenity as a variable category
has entailed adapting a prevailing standard for specific purposes, while
preserving the main formulations. In Ginsberg v. State of New York (1968),
where the Supreme Court formally approved the mechanism of variable
obscenity, which had been operating avant Ia lettre in United States as in
English regulations, it was held that the prevailing Roth standard could be
adapted to allow an assessment of obscenity relative to minors in terms of
its specific appeal to them. Calculations of the variable nature of obscenity
depend on taking cognisance of particular norms: in Ginsberg the norm is
'the ethical and moral development of youth' which might be harmed in a
way not necessarily proven scientifically but nonetheless requiring to be
policed socially (p. 641 ). Similarly, the courts have held that government
has a surpassing interest in preventing the sexual exploitation and abuse of
 United States Obscenity Law 215

children in the production of pornography. In New York v. Ferber (1982)

the Supreme Court explicitly went beyond Miller by upholding a statute
prohibiting persons from distributing child pornography, regardless of claims
of 'value', stating:

When a class of material . . . bears so heavily and pervasively on the

welfare of children engaged in its production, we think the balance of
competing interests is clearly struck and that it is permissible to consider
these materials as without the protection of the First Amendment.
(p. 3358)

Special standards for juvenile obscenity have in fact been provided in many
statutes and have been upheld in broad principle in the courts (M.S. News
Co v. Casado (1983); Upper Midwest Booksellers v. City of Minneapolis
(1985)).
From the standpoint of philosophical liberalism, the regime of manage-
ment confirmed in Roth and Miller has discriminated against the fundamen-
tal right of individual judgement and expression. Richards thus maintains
that the criteria of prurience, offensiveness and community standards trans-
late moral fears into proscriptions against 'harms' which are more imagi-
nary than real, and that the test of value allows arbitrary and unconstitu-
tional prohibitions on particular kinds of meaning. The legal decisions and
controls which the prevailing standards represent are 'profoundly political
and violate the ideal of neutral principles of constitutional adjudication'
(p. 119). Here the idea that the law fails to represent naturally given rights
of the individual combines with the idea that the law directly transmits a
political and ideological will. This philosophical notion that constitutional
adjudication degenerates into 'mis-representation', and that the law fails to
recognise an intrinsic moral right because of distorting political interests,
may be contrasted with our own description of the 'constitutional calcula-
tions' of obscenity law. By this we mean the use of definite judicial
categories and procedures to decide, in the light of certain norms and policy
considerations, which are the appropriate formal jurisdictions to activate
and which the appropriate interrelations between legal regulation and self-
regulation to empower in the pornographic field. 18

DIFFERENCES AND LIMITS

We turn now to the legal administration of rights in connection with the

various law enforcement agencies in the United States. In the light of our
discussion thus far, we would expect that in relation to policing practices,
216 On Pornography
rights and interests in pornography will be organised, delimited and modi-
fied by particular legislative and judicial means, according to public policy
objectives, in an exchange between summary regulation and pedagogic
management. As we saw in a different historical context in Chapter 3 when
discussing the 1908 Report from the Joint Select Committee on Lotteries
and Indecent Advertisements, the policing of pornography involves a dense
network of agencies which have different kinds of authority and modes of
operation. In the United States, the relevant law enforcement agencies
include local, state and federal police, the Customs Bureau, the Post Office
Department and the Federal Communications Commission. The jurisdic-
tions of these agencies may overlap, as they do in the policing of major
producers and distributors of erotica operating in different states and through
multiple channels, but as the Lockhart Report states (p. 394), there is 'no
systematic cooperation' between them. The powers and operations of these
agencies are supported, and delimited, by legislative and judicial calcula-
tions of Americans' rights and interests in relation to pomography.I 9 The
judicial balancing of summary procedures with constitutional rights which
this involves may be illustrated with reference to the procedures of routine
policing.
This balancing is seen in a general division of responsibilities between
types of personnel. While police officers administer 'questions of law', the
determination of what meets the standards of prurient interest and patent
offensiveness raises 'questions of fact' which cannot receive a single defini-
tive answer and require case by case judicial decisions in the light of
relevant community standards. Routine policing involves a system of war-
rants Gudicial referrals) in which agents have powers of search and pre-trial
seizure of materials which is presumptively obscene. 20 Provision exists for
material to be destroyed in order to avoid criminal prosecution for obscen-
ity. When it comes to whether the material in question is actually obscene,
the decision can only be made by the trier of fact. In the courts, this is the
role of a judge, magistrate or jury. In routine police work, it is the task of the
judicial officer (magistrate or judge) issuing the search warrant to make an
initial determination whether there is probable cause to believe the material
in question is obscene (see, for example, Ross v. State (1984)). This deci-
sion is to be made on the basis of facts stated in the relevant police affidavit.
The police statement must not be merely conclusory. It must describe the
materials with sufficient particularity to enable the judicial officer to focus
searchingly and independently on the question of obscenity in the light of
the prevailing Supreme Court test (see, for instance, Commonwealth v.
Dane Entertainment Services, Inc. (No. 1) (1983)). The trier of fact's
decision must be made under the prevailing judicial standards for obscenity
 United States Obscenity Law 217

which are embodied in constitutionally valid legislation. These formalised

arrangements are seen as a safeguard of due process, ensuring that police do
not become 'censors' by suppressing materials independently of an appro-
priate judicial and constitutional test for obscenity. 21
Other procedural limitations on policing, marking an intersection with
forms and rights of self-regulation, include the conditions of scienter and
prior restraint. Under the scienter requirement established for obscenity in
Smith v. California (1959), a defendant may not be punished for a violation
unless he or she is proven to have committed the violation knowingly (cf.
the Lockhart Report, p. 376). This requirement is intended to avoid placing
a prior restraint on the publication and dissemination of constitutionally
protected material. Inhibition of protected expression might occur if per-
sons can be held criminally liable for dealing in material whose contents
they do not know and so decide to limit the materials they possess for sale
or similar purposes to those which they have inspected. The definition of
'knowing' has included both direct knowledge of the character of the
materials and reason to believe further inspection of them is warranted (see,
for example, Commonwealth v. Stock (1985)). The effect of this require-
ment is that for an action to become an obscenity violation it must include
the element of mens rea. 22
This requirement for the element of prior knowledge in the definition of
the crime - relating as it does to certain commercial and moral rights and
interests - allows us to make a further argument against the recurring
philosophical liberal criticism that obscenity law infringes on First Amend-
ment rights because its definition is vague, subjective and too arbitrary to
allow consistency in the policing of sexual materials. The Lockhart Report
contends (p. 59) that the Roth criteria are 'vague and highly subjective
aesthetic, psychological and moral tests'. They do not, it is said, provide
meaningful guidance for law enforcement officials or the courts, and so
produce erroneous decisions and interfere with constitutionally protected
materials (cf. Paris Adult Theatre I v. Slaton, Mr Justice Brennan dissent-
ing, pp. 73-114). Supposedly, this subjectivity and vagueness also make it
impossible for publishers, distributors, retailers and others to know in
advance whether they will be charged with a criminal offence for purveying
a particular work. This may lead to over-cautiousness on their part and have
a damaging effect on free expression and the free market in ideas (Lockhart
Report, pp. 45-6).
However, the scienter requirement works precisely to afford a measure
of constitutional protection to purveyors of sexual materials, while limiting
their ability to have recourse to the right of free expression. It is a defence
for booksellers to claim that, having not inspected their entire stock, they
218 On Pornography

did not know that it contained pornographic works; but this defence implies
that what counts as pornographic is indeed known routinely. In other words,
this mechanism shows that the policing of pornography cannot be dismissed
as a clumsy infringement of an inherent right to expression. On the contrary,
in regulating obscenity the police and courts are usually dealing with more
or less 'known' quantities- that is, specific forms of production of materi-
als, channels of distribution and categories of consumer. This holds for the
range of statutes we cite in the following paragraphs covering diverse law
enforcement agencies, which include the scienter condition or, as in the
case of radio communication, are understood to imply it- United States v.
Smith (1972). To adapt Mr Justice Stewart's comment on the problem of
defining obscenity- 'I know it when I see it' (Jacobellis v. Ohio (1964), p.
197) -judicial agents and police may know or presume to know obscenity
when they see it because there is a trade whose agents usually know
obscenity whether they actually see it or not. It is held in the courts that
absolute precision is not necessary in statutory definitions of obscenity, and
that in order to satisfy due process requirements it is necessary only for the
language used to provide what was described in another context in United
States v. Petrillo (1946, p. 8) as 'sufficiently definite warning as to the
proscribed conduct when measured by common understanding and prac-
tices'. From these specifications, we see that due process and judicially
administered procedural limitations cannot adequately be understood through
reference to a given right of expression that is automatically compromised
by the presence of state interests. In practice, rights and interests are objects
of calculations made in terms of social norms and policy objectives, in order
to regulate more or less readily recognisable practices, or what Mr Justice
Brennan referred to as the 'calculated purveyance' of pornography (Mishkin
v. State of New York (1966), p. 512). 23
If we tum to the other law enforcement bodies, we see similar interac-
tions with judicial agents. 24 The Customs Statute prohibits all persons from
importing obscene articles into the United States. 25 Procedures followed by
the Customs Bureau allow for random inspection of imported items, and
any matter discovered which the Bureau believes to be obscene is subject to
seizure and forfeiture by customs officers. Such matter must be referred to
the United States attorney of the relevant district who arranges for a district
court adjudication, made according to prevailing constitutional standards,
of the question of whether the material is obscene, and only then may an
article declared obscene be destroyed. 26
The basic mail statute prohibits the use of the mails for sending or
delivering obscene materials. 27 The United States Postal Inspection Service
has the power to investigate suspected violations of statutes, although
 United States Obscenity Law 219

(according to the Lockhart Report, p. 389) the Justice Department may also
initiate proceedings and has done so especially in relation to pandering-
that is, the 'business of purveying graphic or textual matter openly adver-
tised to appeal to the erotic interest' of potential customers (Ginzburg v.
United States (1966), p. 467). To a large extent, postal regulation works
through administrative procedures rather than relying on prosecution. These
procedures include the denial of second-class mailing privileges, declara-
tions of non-mailability, and procedures of prevention and suppression,
including the provision of lists of persons desiring to receive no sexually-
oriented advertising mail. 28 Statutes and legal judgements demarcate res-
ponsibilities here, in a way similar to that just discussed in relation to police
warrants, sueh that any final decision on whether an article is obscene is (as
we saw in Grove Press) a matter specifically for judicial resolution accord-
ing to prevailing obscenity standards.
The Federal Communications Commission investigates violations of the
federal statute which prohibits the use of obscene, indecent or profane
language by means of radio communication. 29 It is of interest that in 1970
the Lockhart Report implied that the Commission was not actively regulat-
ing obscene or indecent broadcasting (neither independently monitoring
stations in order to detect violations nor as a rule imposing penalties on
broadcasters or amateur operators unless as a result of citizens' complaints).
However, by 1986 the use of such means of communications as cable and
satellite television and the telephone to transmit obscenity has come to be
regarded as a serious problem. The Hudson Report (pp. 562-82) recom-
mends that Congress review the laws to allow agencies such as the Federal
Communications Commission to control these activities more effectively.
Such a reversal shows how calculations of the nature and effects of obscen-
ity have continued to shift, often suddenly, in response to changing uses of
technology, forms of distribution and audience dispositions.
In line with our general redefinition of the category of rights, these
examples of judicial and police processes show that to understand the
practical availability of rights of expression in the regulation of pornogra-
phy, the philosophically conceived right of expression needs to be
disaggregated into the miscellany of statuses, entitlements, obligations and
types of agency, located at the level of either the regulating or the regulated
bodies. Rights of expression here have differentiated forms and limits
dependent on the law's calculation of governmental interests in regulating
various eroticising uses of media and in negotiating relations between
summary regulation and self-management. To spell out this 'disaggregation',
three points can be extrapolated from the materials presented above, in
keeping with our emphasis on the positivity of legal means, the overlap of
220 On Pornography

legal process and public policy objectives, and the exchange between dif-
ferent modes of regulating pornography.
First, in the regulation of pornography and obscenity the individual is not
the unified origin of some essential right, but may be invested with legal
attributes appropriate for pursuing particular interests. In practice, the myriad
statutes and cases relating to obscenity in the United States show that rights
of speech and press in relation to pornography are invested in persons
performing such different roles as those of publisher, importer, distributor,
writer, film-maker, videotape producer, translator, advertiser, broadcaster,
librarian, exhibitor and consumer. These individuals pursue such diverse
activities as producing, recording, transporting, mailing, importing, carry-
ing, transmitting, selling, lending, projecting, buying, receiving, renting,
reading and viewing numerous kinds of sexual materials, as well as employ-
ing certain categories of personnel and conducting certain types of busi-
nesses. In regulating obscenity, the courts are not attempting to reconcile
the actions of policing with some all-purpose right to free expression which
individuals possess; they are deciding whether persons are entitled to spe-
cific economic and moral rights in the light of governmental and welfare
interests in regulating pornography.
Second, the law resolves competing or in some cases contradictory rights
and interests. It does so in terms of particular norms and policy considera-
tions which it can recognise and adopt. Despite the privileged place ac-
corded in liberal jurisprudence to the individual's right to read or see what
he or she chooses to consume, in practice no particular right of speech and
publication is held to transcend all other rights and interests. In the legal
regulation of pornography, rights of expression are maintained for specific
purposes and are negotiated against other rights and interests. So, for
example, rights of booksellers, book distributors and publishers to deal in
sexually explicit materials which are not considered 'obscene as to adults'
encounter restrictions on the display of such materials in business or com-
mercial districts where minors are likely to be exposed to view them -
restrictions which are considered constitutionally valid because of a policy
of protecting minors even though booksellers might engage in self-censor-
ship because of them (cf. American Booksellers Association, Inc. v. Rendell
(1984)).
Further evidence of the way in which the law mediates different interests
through its consideration of extra-legal norms is furnished by the fact that
the same individual may occupy different and possibly contradictory
statuses. Thus the rights of adults to have access to sexually explicit mate-
rials are not simply identical with the rights of parents to exercise their own
discretion in directing their children's upbringing, including their relation to
 United States Obscenity Law 221

sexual materials. The latter rights are tempered by judicial recognition of a

governmental interest in the welfare of minors and hence in managing
problems posed by child pornography, commercial display, and the use of
media in the household - including independent access of minors to por-
nography on cable television (that is, in the very space in which a parent
may wish to exercise an adult right to receive pornographic messages). 30
To identify this legal construction, delimitation and mediation of rights in
another way, rights of expression in sexual materials do not originate in an
essential moral right but are built up alongside other legally constructible
rights and liabilities inseparable from public policy considerations. The
question of whether a particular course of action can be made a right of
expression is decided in the context of both already established rights of
expression and other layers of rights and liabilities. Hence the question of
whether pornography counts as speech - that is, as a constitutionally pro-
tected use of a medium outweighing any identified governmental interests
in restricting its free performance and sirculation - is a practical and
variable question.
That this is so is reflected in the fact that there are preconditions and
limits on access to a protected right of expression in pornography. The
circumstances under which individuals or groups are entitled to invoke First
Amendment rights to support a particular type of action or relief are a
matter of legislative determination and, in contested cases or challenges to
the legislation's constitutionality, judicial deliberation. Courts have thus
held that an element of 'expression' associated with a practice cannot be
used to extend constitutional protection to conducts otherwise proscribed,
such as obscenity and prostitution. In Arcara v. Cloud Book, Inc (1986), it
was ruled that the attempt to gain protection for illegal activities by associ-
ating them with the domain of 'expression' (in this case, by selling books on
premises used for prostitution) was invalid. Once limits have been set on the
protecting of certain activities as 'speech', there can follow constraints on
attempts to use other rights to overcome those limits. In Commonwealth v.
Stock (pp. 316--7), it was held that the right to enter a business contract does
not entail the right to require that distributors or retailers take for resale any
materials of an obscene nature. These instances underscore the fact that it is
the law which decides whether the behaviour in question is of a kind to
which rights of expression attach.
Third, the fact that within the legislative, judicial and policing networks
concerned with the regulation of pornography, rights of expression are
variable entitlements confirms that such rights are mechanisms which allow
the boundary between law and policing to be maintained or adjusted. This
means that if the circumstances under which rights may be mobilised are a
222 On Pornography

matter of judicial decision, so, too, are questions of the scope of particular
rights. This may be illustrated by looking at the way in which the right of
privacy- a relatively new right, now in the process of rapid expansion- has
come to intersect with the regulation of pornography. 31
In the nineteenth century the policing of obscenity and indecent materials
was mainly concerned with supervising the streets and places of popular
entertainment. In those circumstances, the consumption of erotica in the
home, in the form of gentlemen's pornography for instance, was not a major
issue. There was no question of passionately defending the individual's
'privacy' and keeping the door shut against the state, nor of arguing that the
law should be reformed to respect a universal right of individuals to use
pornography privately. A legal notion of a 'privacy' exercised in the use of
book sex was not then available. By the mid-twentieth century, the idea of
the right to cultivate one's sexual self through the auto-erotic use of various
sexual media has become a major theme in the liberatory project of deregu-
lation. As noted in Chapter 6, philosophical liberalism conveniently conflates
an architectural space of privacy with the assumed autonomy of the subject
of consciousness. The right to choose for oneself what to read, write or view
by way of sexual materials becomes fused with the spatial right of privacy,
which can then be treated in tum as flowing from the natural definition of
the individual as self-possessed subject.
The legal use of the category of privacy is, however, dependent
on particular social relations, spatial arrangements and norms of conduct,
not on the putative moral autonomy of individuals left to their own
devices. In United States law, a right in the private use of obscenity was
specifically recognised in Stanley v. Georgia (1969). Now, on the issue of
whether the appellant has 'the right to read or observe what he pleases -
the right to satisfy his intellectual and emotional needs in the privacy of
dhis own home' (p. 565), there is no doubt that the Supreme Court rhetori-
cally equates the privacy of a place with the privacy or individuality of
thought. It holds that the mere categorisation of the materials in question as
obscene does not justify state inquiry into what the individual possesses and
reads:

Whatever may be the justifications for other statutes regulating obscen-

ity, we do not think that they reach into the privacy of one's own home.
If the First Amendment means anything, it means that a State has no
business telling a man, sitting alone in his own house, what books he may
read or what films he may watch. Our whole constitutional heritage
rebels at the thought of giving government the power to control men's
minds. (pp. 565--6).
 United States Obscenity Law 223

However, this decision does not introduce an unlimited privacy right deriv-
ing from the inviolate personality of the individual. We have already ob-
served that with regard to domestic privacy the same individual may be the
bearer of incompatible rights attached to the legal personas of 'adult' and
'parent'. In fact, the construction of the right in Stanley is a highly specific
judicial adjustment of .the line between policing and self-management,
made possible by the judicial adoption of an aesthetic, infra-legal norm.
This judicial definition of a right turns on an idea of privacy in which
aesthetic regulation is equated with a capacity of more or less civilised
behaviour; protection is not implied for problem behaviours which may
come to the attention of the police and in relation to which private spaces
might begin to look less sacrosanct. The type of action or relief recognised
does not provide a general base on which other rights claimed in relation to
privacy will necessarily be granted. As we observed, constitutional rights
are specific and bounded, and the recognition of one does not spread,
rhizome-like, to form others on the ground of some all-inclusive moral
right. The entitlement granted in Stanley is conditional on 'possession' by
the individual of obscene material for his own use 'in his home' (p. 568).
The Lockhart Report points out that some lower federal courts gave a
degree of recognition to correlative rights in distribution, importation,
mailing and exhibition, soon after this ruling was made. However, this
direction was not followed by the Supreme Court, whose decisions have
shown that the right to private use is not readily transferable to other
contexts. The Court distinguished explicitly between the public distribution
of obscene materials and possession in the home (p. 567) and made no
suggestion that the privacy right could be extended by linking it to places
other than the home, or to the notion that there is a private space which
persons carry with them wherever they might go. Further it refused to
accept that certain social relations of confidence deserving of protection
might provide an acceptable basis for privacy rights more generally. 32 In
United States v. Orito (1973), the Court rejects the idea that 'some zone of
constitutionally protected privacy follows [obscene] material when it is
moved outside the home area protected by Stanley' (pp. 141-2). In this and
several other cases, attempts to argue that the right of private possession
entails a correlative right to sell, receive, import, transport or distribute
obscene material, were unsuccessful. 33
The fact that an individual may have the right to possess but not receive
obscene materials, perhaps inconsistent from a philosophical point of view,
makes sense when it is remembered that rights in the use of erotica are
determined in relation to interests in regulating conducts associated with the
circulation of possibly harmful materials. It is also worth noting that there
224 On Pornography

are constraints on individuals' abilities to invoke privacy rights in conjunc-

tion with forms of 'conduct' just as there are in relation to the exercise of
rights of 'speech'. So, for example, in Swann v. State (1981) it is held that
an art outraging public decency - an act noticed by police on commercial
premises - is not protected by a privacy interest related to the use of a
confined film booth for viewing pornography. From judicial considerations
of the policing of pornography outside the home, in locations such as adult
bookstores with viewing facilities, clubs, cinemas and theatres, we see that
'privacy' is not a right to make use of a given space at will which is granted
legally in recognition of the inherent attributes ('consciousness', 'rational-
ity', 'inviolate personality') of the individual. On the contrary, in delineat-
ing the private and the public, the law is authorising different mechanisms
(here self-management and there policing) for regulating specific types of
behaviour associated with the circulation of sexual materials in differenti-
ated social spaces.
In the regulation of pornography, rights of expression and privacy are
categories through which individuals are, to a degree, made responsible for
managing their own conducts in relation to sexual materials. Our
disaggregation of rights of expression shows that the balance between
strategies of regulation and deregulation is a matter of complex and con-
tinuous assessment. The idea of an essential individual right in the use of
sexual materials as 'expression', and the accompanying theme oflegal and
social reform to be achieved through derepression, cannot guide legal
calculation beyond a certain point in dealing with competing interests,
different uses of materials and different specifications of pornography's
effects on character and conduct. Of course, philosophical and aesthetic
norms have come into play in the legal interpretation of constitutional
rights. However, when they do so, the recognition of rights takes place
according to definite and limited legal calculations, deeply informed by the
interests of government and self-government.

RIGHTS OF THE ETHICALLY COMPETENT

We have seen that in the regulation of pornography, not only is the con-
struction of rights of expression historically contingent, but the rights so
constructed are variable. In other words, rights are relative to the availabil-
ity of certain capacities for self-regulation, and to the legal buttressing of
different channels of distribution. The definition of a right of private posses-
sion of obscenity marks the legal adoption of a pedagogically distributed
aesthetic norm which literally has become domesticated (the individual has
 United States Obscenity Law 225

the right 'to satisfy his intellectual and emotional needs in the [peaceful]
privacy of his own home'). However, some 'private' practices of sex using
pornographic representations have also posed problems within the domain
of policing. That 'privacy' may be viewed as a space in which sexual media
are used in ways linked with problem behaviours can be seen from the
submission made in 1969 to the Presidential Commission on Pornography
and Obscenity by the Director of the FBI, J. Edgar Hoover, and the police
'case studies' which follow it in the dissenting report of Commissioner
Charles H. Keating, Jr (the Lockhart Report, pp. 632-54). Many of these
case studies register a private or group use of pornography by men and
adolescent males as a means of excitation in committing anti-social acts and
crimes of sexual violence particularly against women and girls. On the basis
of a frequency of association established through police observation, as
against the forms of proof of causality required by certain branches of social
science, Hoover argues that the key issue before the Commission should be
the 'relationship' of pornography and obscenity to anti-social behaviour
and the recommendation of effective and constitutional means of control-
ling the traffic in those materials (pp. 633-4). He gives the following
example of common forms of police evidence:

[I]n one case of a rape of a 12-year-old girl by a 20-year-old boy (sic), a

girlie magazine belonging to the suspect was left at the scene of the attack
and was identified by the victim as being in the youth's presence at the
time of the attack. The presence of the girlie magazine in the possession
of the rapist at the time of the attack is sufficient to warrant notice as a
statistic giving evidence of the 'relationship' of obscenity to anti-social
behaviour and bearing on the 'rationality' of [obscenity] legislation.
(pp. 635--6)

Hoover is not the most acceptable angel to have on one's side. In this
book, though, we have often asked readers to reconsider rejected sources,
and such police documentation indicates that governmental responsibilities
in controlling harms associated with uses of pornography may be compel-
ling even in a context of extensive pedagogic management of sexualities.
We can also note that the Hudson Report, taking a different approach from
the majority in the Lockhart Report, argues that certain problems associated
with the use of evidence provided by 'clinical' professionals on the effects
of exposure of pornography (such as the problem of statistical generalisa-
tion on the basis of experimental samples) diminish if demographic
evidence is taken into account (p. 315). Significantly, the mechanism of this
wider observation is again the provision of evidence from law enforcement
226 On Pornography

personnel. While it is acknowledged that such data is less 'scientific' than

some other kinds of evidence, it is seen as able to produce 'some positive
statistical correlation between the prevalence of some type of material and
some harmful act':

For example, we have heard much evidence from law enforcement per-
sonnel that a disproportionate number of sex offenders were found to
have large quantities of pornographic materials in their residences. Por-
nographic material was found on the premises more, in the opinion of the
witnesses, than one would expect to find it in the residences of a random
sample of the population as a whole, in the residences of a random
sample of non-offenders of the same sex, age, and socioeconomic status,
or in the residences of a random sample of offenders whose offenses were
not sex offenses. To the extent that we believe these witnesses, then there
is a correlation between pornographic materials and sex offenses.
(p. 316)

Despite their apparent vulnerability to scientific critique, such correlations

have been the stock-in-trade of governmental calculation and intervention
since the early nineteenth century, when the collection of social statistics
was irrevocably tied to the agencies and objectives of social policing. The
idea that it is possible to reject such action-oriented know ledges by appeal-
ing to non-normative statistical descriptions is, in our view, certainly uto-
pian and possibly meaningless. For this reason we are not uncomfortable
with the overlap between police-statistical correlations of pornography with
criminal behaviour and our own thesis that pornography is not a type of
representation but a type of behaviour using representations. The reference
to links between use of pornography and sex offences is comparable to the
use of pornography as a script to be emulated in reaJ-life situations involv-
ing physical and psychological harms to women. 34 In the Hudson Report,
the way in which the circulation, 'possession' and use of pornography show
up - through the use of statistical evidence - as a social problem requiring
regulation, is related to normative concerns with uses of sexual media in
patterns of conduct, not to the goal of establishing an objective 'truth'. This
report thus demonstrates that governmental interests and policy objectives
in regulating pornography persist, and that the key problem is considered to
be not whether the pursuit of such interests offends the First Amendment,
but where the adjustable threshold is to be established between ethical self-
regulation and juridical policing.
In placing a limit on the 'absolutist' view that even the hardest-core
pornographic item is a communicative act whose distribution and use 'is
 United States Obscenity Law 227

within the First Amendment's coverage', the Hudson Report accepts that
the fundamental direction of the Supreme Court in Roth and Miller is
correct (cf. pp. 263-4). Like the judicial calculation of rights and interests,
the logic of its recommendations is distributional. The right of expression is
specific and is limited to the production, dissemination and use of materials
which surpass 'some admittedly low threshold of cognitive appeal, whether
that appeal be emotive, intellectual, aesthetic, or informational' (p. 264).
While lines are not easy to draw, most hard-core material falls below 'this
minimal threshold of cognitive or similar appeal' (pp. 264-5). The 'market-
place of ideas' is not evoked as the democratic scene on which the universal
potential for self-expression will be realised. Even though hard-core mate-
rial might be seen as containing some characteristics of expression serious
enough to merit constitutional protection if it appeared in a different context
and was presented in a different way, there is no doubt that the commercial
trade in such material is in fact 'directed virtually exclusively at sexual
arousal' (pp. 265-6). In other words, as observed above, pornography is a
trade in 'known' quantities, distributions and uses. The use of hard-core
materials, in the Report's view, is less a matter of speech than of conduct:

The manner of presentation and distribution of most standard pornogra-

phy confirms the view that at bottom the predominant use of such
materials is a masturbatory aid. We do not say that there is anything
necessarily wrong with that for that reason. But once the predominant
use, and the appeal to that predominant use, becomes apparent, what
emerges is that much of what this material involves is not so much
portrayal of sex, or discussion of sex, but simply sex itself. As sex itself,
the arguments for or against restriction are serious, but they are argu-
ments properly removed from the First Amendment questions that
surround primarily materials whose overwhelming use is not as a short-
term masturbatory aid. (p. 266)

From this point of view, the acceptance of a constitutional right to

'expression' in the use of sexual materials is thus limited to those channels
and populations in which what we have called 'aesthetic' techniques of
production and use are distributed and maintained. The governmental dis-
tinction made in the Report between those uses of erotica which can be
managed as 'speech' through processes of self-regulation and those which
need to be regulated through legal intervention and policing clearly over-
laps with our account of the limited ethical and political options for regulat-
ing pornography. There has been no access (nor, it seems, will there be) to
a position in which one can automatically invoke constitutional guarantees
228 On Pornography

covering free speech in order to gain protection for the conducts associated
with the production and use of sexual materials. The Report adds that, of
course, 'using a picture of sex as a masturbatory aid is different from the
simple act of masturbation, or any other form of sex' (p. 267), and that the
very use of words and images requires some attention to First Amendment
questions. However, it continues, standard pornographic material in its
'standard context of distribution and use' is 'so far removed from any of the
central purposes of the First Amendment, and so close to so much of the rest
of the sex industry' that affording such material constitutional protection
seems 'highly attenuated' (p. 267).
In the foreseeable future, there will be further decisions on what kinds of
sexual materials and related conducts will be proscribed, permitted or
protected. Moreover, we will see a process of continuous adjustment to the
boundary between self-regulation and regulation by law. Philosophical
liberalism is itself attached to the system of pedagogical management which
comprises one of the two major available strategies - along with legal
policing - which are available for regulating sexualities and the uses of
erotica. Decision-making in this field of regulation cannot be founded in
universalising distinctions between sex and its representation, conduct and
speech, or the private domain of the moral subject of rights and the public
realm of state controls. Rights and interests in pornography will continue to
be constructed and mediated variably by means of norm-based legal and
governmental calculations. Yet it would be unreasonable to expect that
philosophical liberalism - even confronted by the assemblage of evidence
of the bounded purposiveness of the rights in question - will meekly
evacuate the field, leaving the work of decision-making to less sweeping
and more particularised criteria. Too much has come to be at stake; for
some nothing less than the belief that 'our "liberation" is in the balance', as
Foucault (1979, p. 159) ironically concludes. Even discredited, philosophi-
cal liberalism persists, not least because - unbeknowns to its adherents -its
deregulatory rhetoric is embedded in the regulatory strategies of its govern-
mental twin.
8 Feminism and Law Reform
No one who enters the debate over pornography gets out unscathed, neither
do we expect to be exceptions in this regard. Our historical studies have
indicated that the fields in which pornography is discussed are in principle
incapable of giving rise to a single unified truth of pornography, in relation
to which all individuals could be expected to adjust their thought and
conduct. As an eroticising device, a target of medical-pedagogical pro-
grammes, a tradable commodity, an aesthetic category, an object of femi-
nist and governmental reform campaigns, a legal problem - pornography
has taken shape differently in different departments of existence. Let those
who think that these different constructions of pornography can be recon-
ciled in one overarching philosophical or moral judgement deal with the
fact that two centuries of dispute have brought us no closer to this goal. In
these studies we have therefore taken the disputes as permanent and philo-
sophically irresolvable. Each of the departments mentioned deploys norms,
techniques, conducts and forms of personhood in relation to which pornog-
raphy can be produced, used, judged, appreciated, pathologised, regulated,
and so on. But neither individually nor collectively are they capable of
supporting a judgement that might be true of pornography in general,
because the norms of judgement reach no further than the sphere in which
they are actually deployed.
The one apparent exception is the sphere formed by the institutions of
law and government which can, under certain historical circumstances,
adjudicate the contending claims advanced by the other departments. This
is not really an exception, however. The law does not attempt such adjudi-
cation in the name of a philosophical judgement of pornography. In other
words, its judgements are neither formal nor empirical as these terms are
understood in the epistemological disciplines. Rather, legal judgements are
processual, ceremonial, and based on categories informed by specific pur-
poses - the regulation of trade or morality, the proscription of certain
behaviours, the facilitation of others. This technical and purposive mode of
judgement, coupled with the fact that the law is amongst other things an
institution for settling disputes, is what allows the law to adjudicate in the
case of pornography, through the historical category of obscenity. The law
adjudicates on pornography not through a universally true judgement but by
maintaining a quite narrow set of procedures, categories and purposes that
permits a judgement to take place and to be seen to have taken place. The

229
230 On Pornography

law is the final court of appeal in the dispute and its judgement is binding
by virtue of this institutional finality.
We are quite comfortable with this view and role of the law. It is of
course compatible with our view of obscenity law as a set of juridical
procedures and categories that have been developing in tandem with the
governmental 'policing' of modem populations since the early eighteenth
century. Moreover, this view of legal judgement- as binding in its social
finality - informed our rejection of liberalism's attempt to found and rectify
obscenity law in a philosophical analysis of harm. What is to count as
harmful, we argued, cannot be decided in advance of the procedures and
categories of obscenity law itself and the governmental (medical, pedagogi-
cal) programmes with which it is aligned. It will be recalled that at that point
we rejected the project to draw a universal boundary between law and
morality based on the philosophical distinction between harmful conducts
and harmless representations. It became clear that this latter distinction
could not be drawn in a uniform and a priori manner by presupposing a
subject of consciousness able to exercise judgement through given intellec-
tual and moral faculties. And we showed to the contrary that the law in fact
draws this distinction in a variable fashion; that it does so relative to
medical and pedagogical goals for the conduct of individuals as social
types; and that it treats capacities for moral judgement not as given in the
faculties of the subject but as acquired ethical abilities or competences,
differentially distributed according to age, gender, educational level and
social situation.
Feminism is surely right in rejecting the liberal notion of a universal
rational subject as the basis of political and social action, although perhaps
overly optimistic in thinking that reason is divided along gender lines only,
and that the problems associated with constructions of pornography can be
solved by removing the distorting effects of patriarchal interest. If the
judgements of the law's 'reasonable man' are not the transparent expression
of a universal reason, then neither are they duplicitous or botched attempts
at such expression -mere distortions of reason open to rectification through
exposure of the (patriarchal) 'interests' supposed to inform them. The limits
of legal reason are far more varied and far less escapable than any such
account can allow. This is because the 'reasonable man' is not the (true or
distorted) foundation of legal judgement but a purely retrospective con-
struct, its form and content changing constantly and routinely with changes
in the objectives of legal regulation and the forms of calculation informing
these objectives.
Our rejection of the project of philosophical liberalism signifies a choice
between two different intellectual styles and approaches: the philosophical-
 Feminism and Law Reform 231

aesthetic and the legal-governmental. Under other circumstances it would

be possible to explore the historical determination and reality of this di-
chotomy. Reinhart Koselleck, for example, traces its emergence to the
religious butchery and social chaos of the seventeenth century. It was then,
in those particular historical circumstances, that legal and political intellec-
tuals detached sovereignty and law from absolute notions of morality and
justice and subjected them to a pragmatic and positive reformulation in
terms of the needs of the state and the security and well-being of its citizens.
These were the circumstances in which philosophical and, later, aesthetic
intellectuals defined themselves oppositionally, through the project of sub-
jecting 'positive' law and politics to a higher moral critique- in the name
of universal history and its subject.' For present purposes, however, it is
enough to note that it was just such an attempt to subject positive law to a
higher moral critique that was called into question in our critical discussion
of philosophical liberalism. That discussion was conditioned by our recog-
nition that the governmental objectives embodied in obscenity law set the
parameters within which socially binding judgments on pornography can
actually be achieved.
The manner in which our style of analysis problematises philosophical
liberalism should, therefore, be reasonably clear. What is perhaps not quite
so clear is the coldness of the comfort that it brings to the most widely
promulgated feminist analysis of pornography and obscenity law. It is the
uncertainty of our relation to this latter analysis that we wish to discuss in
these concluding remarks.
It is arguable that the most consistent attempt to translate feminist cri-
tique into law reform - the project of Andrea Dworkin and Catharine
MacKinnon - is characterised by a blurring of philosophical-aesthetic and
legal-governmental objectives, similar to that which undermines the liberal
project. If this is so, then we should expect the Dworkin-Mackinnon project
to be divided by a radical ambivalence: between the imperative to make
feminist objectives socially binding by reformulating them within the cat-
egories, procedures and purposes of the law; and the attempt to reconstruct
the law from a higher moral position, in the name of universal history and
its repressed feminine subject.
Dworkin and MacKinnon drafted a model anti-pornography ordinance
and liaised with local government bodies interested in incorporating it in
their codes relating to human relations and equal opportunity. A version of
this ordinance was passed in Indianapolis in 1984. 2 How does the Indianapolis
ordinance (hereafter the Ordinance) enunciate the case against pornogra-
phy? It defines pornography as a 'practice of exploitation and subordination
based on sex which differentially harms women'. It seeks to 'prevent and
232 On Pornography

prohibit' all discriminatory practices of sexual subordination and exploita-

tion operating through pornography (598 F. Supp., p. 1320). The means to
do so is to declare pornography unlawful because discriminatory. The
Ordinance also provides forms of relief and redress against a range of
pornographic practices: trafficking in pornography, that is, the production,
sale, exhibition or display of pornography; coercion into a pornographic
performance; forcing pornography on a person 'in any place of employ-
ment, in education, in a home, or in any public place'; and assault or
physical attack due to pornography (pp. 1321-2). The mechanisms for
obtaining relief are complaint by persons claiming to be aggrieved by such
practices, or by members of a designated board who have reasonable cause
to believe that a violation of the law has occurred. In relation to trafficking,
a type of class action is provided whereby 'any woman may file a complaint
as a woman acting against the subordination of women and any man, child
or transsexual may file a complaint but must prove injury in the same way
that a woman is injured in order to obtain relief' (pp. 1322-3).
A complaint sets in train an investigation aimed at conciliation and
persuasion in relation to the alleged discriminatory practice. If the com-
plaint is not satisfactorily resolved through informal proceedings, the Com-
plaint Adjudication Committee may hold a public hearing. If the complaint
is sustained, the relevant party may be ordered to discontinue the unlawful
practice and to undertake certain affirmative action including restoration of
the complainant's losses incurred as a result of the discriminatory treat-
ment. Provisions for appeal are made. Finally, if it is found that a person
engaged in discriminatory practice has failed to correct or eliminate it, the
board may file a complaint in the Marion County circuit or superior court
for injunctive relief and other affirmative relief or orders 'designed to put
into effect the purposes of the ordinance' (pp. 1322-5).
Key themes of a broader feminist critique of pornography reverberate in
the finding that is incorporated into the Ordinance:

Pornography is a discriminatory practice based on sex which denies

women equal opportunities in society. Pornography is central in creating
and maintaining sex as a basis for discrimination. Pornography is a
systematic practice of exploitation and subordination based on sex which
differentially harms women. The bigotry and contempt it promotes, with
the acts of aggression it fosters, harms women's opportunities for equal-
ity of rights in employment, education, access to and use of public
accommodations, and acquisition of real property; promote rape, battery,
child abuse, kidnapping and prostitution and inhibit just enforcement of
laws against such acts; and contribute significantly to restricting women
 Feminism and Law Reform 233

in particular from full exercise of citizenship and participation in public

life, including in neighbourhoods. (p. 1320)

In line with wider feminist arguments, this finding treats pornography not as
some self-enclosed world of representations having no tangible effects in
real life but as a 'practice' of sex discrimination. Pornography is a harmful
type of behaviour because it reduces the status of women by treating them
as 'sexual', where the meaning of this term is wholly imposed by men for
their own gratification. In the Ordinance, pornography is identified with
various ways of 'presenting' women: as sexual objects who enjoy pain and
humiliation, or experience sexual pleasure in being raped; as bodies in
bondage, cut up, bruised, physically hurt, fragmented, severed, or in other
scenarios of sexual violence and inferiority; as being penetrated by animals;
as sexually available for domination, possession, use and the like (p. 1320).
This mix of instances is placed under the rubric of 'graphic sexually explicit
subordination' of women (although the same ways of presenting men,
children or transsexuals are also said to constitute pornography for the
purposes of the legislation).
There is a clear difference between the feminist arguments on which the
Ordinance rests and the First Amendment absolutist position on pornogra-
phy examined in the previous chapter. The emphasis has shifted from
defending a supposedly inherent right of expression to attacking an insidi-
ous form of power. Specifically, it is argued, the pseudo-right of expression
relating to pornography should be displaced by recognising the right of
women not to be discriminated against on the grounds of sex, a right
invoked under the Fourteenth Amendment. On this account, the abstract-
ness of obscenity and also of free expression as concepts is said to have
allowed pornographic speech - which is in fact a discriminatory conduct -
to be passed off as everyone's speech, a universal value to be protected.
Obscenity law, it is said, thus protects the speech of men which 'silences the
speech of women', and fends off consideration of the actual harmful con-
ducts involved in pornography. Since the defence of pornography is to male
supremacy what its critique is to feminism (MacKinnon, 1987, p. 146),
there is little chance of genuine and profound reform being achieved by
working within the compromised logic of existing obscenity law and First
Amendment 'principles'.
In fact, two quite different political and intellectual styles organise this
mix of elements and the argument of the Ordinance. On the one hand, the
Ordinance specifies the harm of pornography in legal and governmental
terms, as an impediment to women's full participation in civic and eco-
nomic life. Here the operative term is discrimination, and harm is construed
234 On Pornography

as an infringement of civil rights, in tum constructed in terms of govern-

mental objectives associated with equity, efficiency, participation and equality
of opportunity.
On the other hand, the harm of pornography is also specified in philo-
sophical and aesthetic terms, as an impediment to the full realisation of
women's being. In this regard the key term is objectification, and porno-
graphy is conceived as a premature fixing of an ideal mode of being in an
alien form, the alien form and purposes of the male psyche. The lineage of
this conception in Romantic aesthetics and philosophy will be evident from
earlier discussion and is clearly signalled in the claims that pornography
commodifies, fragments, fetishises and alienates women's bodies. 3 It is this
conception that lends a dramatic ambivalence to feminist characterisations
of the pornographically represented body as cut up, fragmented, distorted,
bound, and so on. Such characterisations hover between an aesthetic repug-
nance fastidious enough to be applicable to all instrumentalised representa-
tion, and a fantasmagoria in which metaphor slides into fact, the Hegelian
fragmentation of being finding its lurid correlative in the actual dismember-
ment of bodies.
Needless to say, we have no interest in the game of accusing and convict-
ing Dworkin and MacKinnon of a philosophical confusion. The ambiva-
lence in question is far more important than that and is historically rather
than conceptually rooted. It arises from a radical instability in the forms in
which intellectuals may conduct themselves in relation to positive law and
government. Part of the problem is that there is no way to translate between
the philosophical-aesthetic conception of pornography as objectification
and the actual operations of legal and governmental institutions. The former
conception is a prisoner of the aesthetic dialectic in which a completely
developed (women's) being is unfolded from the successive mutual modi-
fications of mind and body, intellect and emotion, the ideal and the real. The
law operates quite differently with men, women and children; it constructs
their attributes retroactively, in terms of definite and limited legal and
governmental norms, objectives and programmes.
What is more, the aesthetic dialectic is actually a means of withdrawing
from the legal-governmental field and of orienting oneself to another set of
concerns: those of the self conceived as the problematic interface of the two
sides of the dialectic. In fact, the dialectic is an ethical weapon directed
against positive law and government. It aims to problematise their norma-
tive regulation of conduct and attributes by picturing 'complete' human
development as the dialectical neutralisation of all positive norms and the
recovery of 'wholeness' from the fragments. But these of course are pre-
cisely the terms in which pornography itself is problematised. For those
 Feminism and Law Reform 235

under the sway of the dialectic, then, obscenity law is just as problematic as
pornography, and for the same reasons. The definite and limited (positive)
character of legal norms and objectives is treated as a fragmentation of a
more complex and organic sphere of women's development (and oppres-
sion), it being necessary for society to be totally transformed if full being is
to be realised. Once this point has been reached we can be sure that the
project to reform the law has given way to an endeavour of an altogether
different kind: aesthetic critique and self-refinement.
If our diagnosis of this ambivalence is correct, then there is clearly a
danger that the important attempt to construct the harm of pornography as
an infringement of civil rights may be swamped by aesthetically conceived
rights and harms (the right not to have one's being objectified and mis-
represented) whose limitlessness puts them beyond legal claim and redress.
More specifically, if the Dworkin-MacKinnon project is indeed tom be-
tween legal-governmental and philosophical-aesthetic objectives, we should
expect to see it give rise to two interrelated tendencies: first, a tendency to
subordinate obscenity law to philosophical and aesthetic critique - to
problematise its norms, categories and objectives by showing their inability
to realise complete (non-objectified) being; second, the tendency of lawyers
to reject the proposed legal enactment of aesthetic imperatives as non-
constructable within the technical and normative framework of the law.
There is no shortage of evidence for both these tendencies.
Consider in this regard the following remarks by Catharine MacKinnon:

Feminism doubts whether the average person gender-neutral exists: has

more questions about the content and process of defining what commu-
nity standards are than it does about deviations from them; wonders why
prurience counts but powerlessness does not and why sensibilities are
better protected from offense than women are from exploitation; defines
sexuality, and thus its violation and expropriation, more broadly than
does state law; and questions why a body of law that has not in practice
been able to tell rape from intercourse should, without further guidance,
be entrusted with telling pornography from anything less. Taking the
work 'as a whole' ignores that which the victims of pornography have
long known: legitimate settings diminish the perception of injury done to
those whose trivialization and objectification they contextualize. Be-
sides, and this is a heavy one, if a woman is subjected, why should it
matter that the work has other value? Maybe what redeems the work's
value is what enhances its injury to women, not to mention that existing
standards of literature, art, science, and politics, examined in a feminist
light, are remarkably consonant with pornography's mode, meaning, and
236 On Pornography

message. And finally- first and foremost, actually -although the subject
of these materials is overwhelmingly women, their contents made up of
women's bodies, our invisibility has been such, our equation as a sex
with sex has been such, that the law of obscenity has never even consid-
ered pornography a women's issue. (1987, pp. 174-5)

Here feminism is constituted as the higher philosophical and moral prospec-

tive from which it is possible to condemn the arbitrariness of the law's
categories; the narrowness of its regulatory ambit; its gender blindness; and
the absurdity of its attempt to differentiate culture from pornography when
- 'examined in a feminist light' - culture itself is pornographic. 4 Indeed, so
high is the moral and philosophical ground from which this critique is
directed that it risks losing sight of its actual target. It is hardly surprising
that the legal categories of prurience and offensiveness 'fail' when they are
set a task- the representation of women's invisible being -that only makes
sense within the domain of aesthetics.
We are thus given an invitation we may or may not wish to accept: to
convert obscenity law into an occasion for aesthetic critique. And the
alternative we are offered is to remain with such categories as prurience and
offensiveness through which American law has been reconstructing ob-
scenity and defining a programme for the variable pedagogical policing of
problem sensibilities. No doubt the extent to which specifically masculine
sensibilities to pornography can be affected by such a programme remains
an open question, but are we ready to dismiss the question - and the reform
opportunities it may afford - by opting instead for the promise of a total
aesthetic transformation of masculine being?
With this choice in mind, let us return to the solution proposed in the
Ordinance to the perceived problem of sexist bias in the law: the linking of
the feminist critique of pornography as objectification of women to the
legal-governmental category of a civil right of women, under the Four-
teenth Amendment, not to be discriminated against on the grounds of sex. 5
The drafters of the Ordinance deliberately go beyond existing standards in
order to make 'pornography', not just 'obscenity', unlawful. They do not
attempt to couch the restrictions on pornography in terms of community
standards, offensiveness or prurience, nor do they allow for consideration of
the literary, artistic or other value of an otherwise 'pornographic' work. The
restrictions of the Ordinance would thus extend to soft-core pornography
and other materials deemed to be demeaning to women, even though they
need not be 'obscene' in the present legal sense (598 F. Supp., pp. 1331-2).
The scale of these changes indicates what MacKinnon ( 1987, p. 195) refers
to as an attempt to create an 'affirmative access' to speech for those to
whom it has been denied.
 Feminism and Law Reform 237

There is no denying the uncompromising clarity of this vision. By virtue

of a major theoretical intervention, there would be a general jettisoning of
the heterogeneous array of thresholds and distinctions which have emerged
as the means of achieving and administering a variable dissemination of
materials according to legal and pedagogical judgements about kinds of use
and kinds of user. As we have demonstrated, legal distinctions between art
and pornography or between soft and hard-core inhere neither in sexuality
or writing nor in their putative human subject. Rather, they are the particular
instruments on which a variable obscenity and its administration depend.
To abandon them in favour of a global and undifferentiated concept of
pornography at the very least must raise the question of the means whereby,
in practice, distinctions could be drawn between different writings about
sex and different uses of such writings. Whatever the preferred thresholds
might be, what cultural competences would be required in order to recog-
nise them? Would courts and judges become the agents of what would be
essentially an aesthetic judgement?
The courts' reluctance to embark on wholesale change has been taken by
some feminists as confirmation that constitutional process has already insti-
tutionalised and consecrated a male will to power. Referring to the Supreme
Court's affirmation of the decision in Hudnut, MacKinnon thus claims that
the law continues to make pornography 'available in private while decrying
it in public' (1987, p. 211). And Kappeler sees the rejection of the
Minneapolis ordinance by liberals and sections of the media as part of a
wider defence of patriarchal power, protecting the privileges of men pur-
veying and using pornography and so perpetuating women's oppression
(1986, pp. 11-17).6
Given the profound ambivalence between principled commitment to an
aesthetic conception of recovering the wholeness of women's repressed
being and pragmatic embracing of positive legal mechanisms - in this case
the constitutional apparatus protecting US citizens against infringements of
their civil rights - it is not surprising the law cannot construct an equiva-
lence between the feminist definition of pornography as objectification, and
an all-purpose right not to be discriminated against. But is a decision not to
validate such a right necessarily to be seen as a failure to recognise and
redress the sexist bias of obscenity law?
In relation to this question it is appropriate to recall the manner in which
the law recognises and resolves the often intractable disputes and problems
presented to it. We can take as an example the process of judicial decision-
making in this particular case. In doing so, we shall refer to the constitu-
tional calculation of rights in the District Court (598 F. Supp., 1984),
although the same general line of reasoning is followed in the Court of
Appeals. The District Court sees the litigation as requiring it 'to weigh and
238 On Pornography

resolve the conflict between the First Amendment guarantees of free speech,
on the one hand, and the Fourteenth Amendment right to be free from sex-
based discrimination on the other hand' (p. 1327), and to establish whether
the Ordinance has an unconstitutionally 'chilling effect' on the right to free
speech (p. 1328). It is thus a matter of deciding between two legal options.
And in fact the Court decides that the state's interest in prohibiting sex
discrimination created by pornography as the sexually explicit, graphically
depicted subordination of women is not so compelling as to outweigh the
constitutionally protected interest of free speech (p. 1326).7
Constitutional analysis of the Ordinance is then said to require determi-
nation of the following three issues:

[F]irst, the Court must determine whether the Ordinance imposes re-
straints on speech or behaviour (content versus conduct); if the Ordi-
nance is found to regulate speech, the Court must next determine whether
the subject speech is protected or not protected under the First Amend-
ment; if the speech which is regulated by this Ordinance is protected
speech under the Constitution, the court must then decide whether the
regulation is constitutionally permissible as being based on a compelling
state interest justifying the removal of such speech from First Amend-
ment protections. (pp. 1329-30)

On the first of these issues, the defendants' premise is that the Ordinance
regulates conduct, not speech. They find an analogy for this distinction in
the fact that the courts have held that advocacy of a racial segregation
doctrine is protected speech under the First Amendment, while segregation
itself is not constitutionally protected behaviour (p. 1330). For this analogy
to work, it must be accepted that pornography is not only a form of
statement or doctrine but also embodies - in its sex discrimination - an
equivalent to the category of conduct referred to in the area of racial
segregation. The defendants claim that 'the production, dissemination, and
use of sexually explicit words and pictures is the actual subordination of
women' and so constitutes a harmful action, a form of regulable behaviour,
not an expression of ideas entitled to First Amendment protection (p. 1330).
However, the Court sees this claim as ambiguous and ultimately unaccept-
able: pornography is acknowledged in the Ordinance to involve 'words and
pictures', and although pornography 'conditions society to subordinate
women', the means by which the Ordinance seeks to combat this discrimi-
nation is 'through the regulation of speech' (pp. 1330-1).
Having found that the Ordinance seeks to regulate speech not conduct,
the Court states that pornography as defmed therein cannot be held to fall
 Feminism and Law Reform 239

within one of the established categories of speech unprotected by the First

Amendment. It rejects the defendant's claim that since pornography is
'nothing more than the infliction of injury on women', it comprises a form
of what were identified in Chaplinsky as 'fighting words' which can legiti-
mately be regulated because by their very utterance they 'inflict injury or
tend to incite an immediate breach of the peace' (p. 1331 ). The fact that the
Ordinance 'sweeps beyond' unprotected obscenity (p. 1326) would nor-
mally be enough for it to be overturned as unconstitutional, but the defend-
ants argue that this case raises a new issue for the Court and that while the
Ordinance regulates protected speech it does so in a constitutionally permis-
sible fashion (p. 1332).
For all their sweeping character, these claims and counterclaims are in
fact conducted within the instituted technical procedures of the legal sphere.
For instance, and quite predictably, there is the mode of argument from
precedent. The defendants claim that the legal category of obscenity has not
been the only basis for regulating sexually explicit materials and conducts
or for distinguishing the protected from the unprotected, and that the exist-
ing variations on Miller should be extended to include the newly-defined
class of discrimination as a form of unprotected materials (pp. 1332-5).
They cite a trio of precedents to make this point, arguing firstly that the
interests of protecting women from sex-based discrimination are as compel-
ling and fundamental as those upheld in New York v. Ferber (1982) for the
benefit of children (p. 1332-4). In that case, it was ruled that a state interest
in 'safeguarding the physical and psychological well-being of a minor'
outweighs the interest in upholding guarantees of free speech for child
pornography, even despite any literary or other value which the material in
question may be deemed to possess. In Hudnut, however, the Court holds
that the Ferber rationale for going beyond Miller applies only to minors.
The governmental interest in protecting children is not 'readily transferra-
ble to adult women as a class' because the latter 'do not, as a matter of
public policy or applicable law, stand in need of the same type of protection
which has long been afforded to children'. 8
The Court also holds that the second case invoked by the defendants,
FCC v. Pacifica Foundation (1978), is not controlling in the present case
(p. 1334). In Pacifica, the Supreme Court held that broadcast offensive
speech was not entitled to protection. Because the broadcast media have
established 'a uniquely pervasive presence' in the lives of Americans, such
speech may infringe on the individual's right to be left alone in the privacy
of the home. Moreover, broadcasting is 'uniquely accessible to children,
even those too young to read'. In Hudnut, the Court holds that this pre-
cedent, although permitting regulation of the 'content' of speech, specifi-
240 On Pornography

cally involves problems of dissemination. Since the Ordinance does not

restrict itself to regulating broadcast media nor to protecting children, the
reasons used to justify restrictions in Pacifica cannot be called upon in this
case.
The Court also rejects the precedent of Young v. American Mini Thea-
tres, Inc. (1976) invoked by the defendants (pp. 1334-5). While it notes that
in Young the Supreme Court upheld a city ordinance regulating the location
of cinemas featuring erotic films, it also observes that this was a 'place'
restriction, not a complete ban on the pornographic materials. The judge-
ment concerned not the content of the films alone but a type of distribution
which, it was considered, would have an effect on the character of the city's
neighbourhoods of a kind which justified restrictions on the communica-
tions. However, the Indianapolis Ordinance is seen to prohibit the distribu-
tion of 'material depicting women in a sexually subordinate role, at all
times, in all places and in every manner' and therefore cannot find support
from such a precedent.
The argument on these precedents provides an economical and practical
reminder of what is meant by obscenity as variable category and of what is
involved in its legal administration. The juridical policing of sexual mate-
rials and conducts is deemed permissible only when justified by a judicial
calculation of governmental interest in relation to particular norms: the
welfare of minors, standards of decency in broadcasting, the character of
urban spaces. The putative harm of objectification- applicable 'at all times,
in all places and in every manner' -is meaningless in a system where harm
is variably calculated relative to a diversity of specific social-legal objec-
tives. In each case, what is more, the recourse to legal policing measures has
to be balanced with another governmental interest in protecting speech. In
its tum, protected 'speech' entails a series of rights and interests exercised
by diverse agents of production, distribution and reception. In other words,
despite the charge that they simply 'reflect' First Amendment absolutism by
misrepresenting harmful conduct as protected speech (MacKinnon, 1987, p.
165), the courts do not enshrine a philosophical-liberal conception of rights,
since in delimiting rights of expression they are dealing with the pragmatic
question of how particular practices and diverse behaviours associated with
pornography are to be regulated. Finally, it is only when practices such as
those considered in these precedents pose problems which pedagogic and
ethical strategies of management do not adequately resolve, that legal
policing measures are seen to be warranted.
Since precedent does not permit the regulation by the Ordinance of
otherwise protected speech, the Court then asks whether there is a compel-
ling state interest which would justify a new exception to First Amendment
 Feminism and Law Reform 241

guarantees (pp. 1335-7). Here the Court notes that the premise of the
Ordinance is that the discrimination of pornography degrades women as a
class, and so does not require specifically defmed victims for most of the
proscriptions introduced. The reality of this discrimination is not denied.
The Court rehearses the arguments that pornography negatively affects
those women who suffer the direct abuse of its production or on whom
violent kinds of performance are imposed, and that exposure to pornogra-
phy fosters discriminatory attitudes and behaviours, and causes in its male
viewers 'an increased willingness to aggress toward women' (p. 1336). The
defendants argue that just as the Supreme Court accepted as constitutional
legislation which regulates obscenity as harmful to people, so too should the
Court now accept legislation which regulates pornography as harmful spe-
cifically to women (pp. 1336--7).
However, the Court distinguishes between judicial and legislative func-
tions. It says that there may be good reason to support legislative action
such as the finding on which the Ordinance is based. The Court's own role
is not to question the legislative fmding but 'to ensure that the Ordinance
accomplishes its purpose without violating constitutional standards or im-
pinging upon constitutionally protected rights' (p. 1337). In this framework,
the Court reiterates that the Ordinance seeks to regulate protected speech,
and states that in its own role it 'cannot legitimately embark on judicial
policy-making, carving out a new exception to the First Amendment' for
this or some other interest group claiming to be victimized by 'unfair
expression' (p. 1337).
Faced with this daunting series of precedential and procedural distinc-
tions, we might well be drawn towards the seeming clarity and directness of
a less differentiating and temporising mode of argument and decision-
making. Yet, as previously, we would then have to ask: what would be the
practical consequences of throwing these legal distinctions away? Would it
be feasible to pass the policing of pornography entirely over to a domain
other than the law, for instance to pedagogy or to sociology? The Court
itself, in fact, acknowledges such an 'alternative' domain when it refers to
the discrimination of pornography against women as a class as a 'sociologi-
cal harm' diminishing the legal and social status of women (p. 1335).
However, having admitted the notion of a 'social' judgement and adminis-
tration of pornography, the Court moves to recognise the limits of its own
competence, which reaches no further than the limits of the legal sphere.
The Court thus contends that necessary or desirable changes in 'sociologi-
cal patterns' (p. 1337) are not likely to be brought about by legislative
dictate. This is, perhaps, the Court's way of admitting that there is no single
or unified truth of pornography, and that the legal definition and manage-
242 On Pornography

ment of obscenity is pursued not in some unbounded and undifferentiated

space but within the confines of a jurisdiction. This delimitation of institu-
tional competence is in keeping with our argument that the governmental
pedagogies by means of which some sectors of the population have learned
to problematise their own relation to erotica have not entirely replaced and
cannot entirely be replaced by mechanisms of legal policing. A civil right
not to be discriminated against by pornography cannot easily be superim-
posed as a generalised mechanism to police a pornographic field in which
forms of self-regulation already play a significant role.
To argue that there are - and in the foreseeable future will need to be -
limits on the scope of legal policing is not to imply that an attempt such as
that made in the Ordinance to introduce a civil rights law against pornogra-
phy creates a police state:

Audiences of lawyers say it is politically naive to rely on courts to

administer our pornography law our way. Then they say we should rely
on existing law and existing courts for relief of any harms of pornography
that they concede are real. Our civil rights law will produce a police state,
they say. Then they recommend vigorous enforcement of criminal laws
against rapists and batterers, whose victims are conceded to number well
over half of all women. When told that they are, in effect, recommending
reversing the numbers of those in and out of prisons, they say, do not rely
on law at all. Now that we want a law against pornography, they say that
law doesn't do anything significant anyway. Rely on the First Amend-
ment- as if that is not a law. Forget law, educate - as if law is not
educational. They say that the state is eager for the chance to suppress all
sexually explicit materials. They have no explanation- these, the politi-
cal sophisticates to our political naivete - for the fact that with a tool as
vague and discretionary as criminal obscenity statues, this same state has
stood by and watched the pornography industry double in the last ten
years. Some day try solving a legal problem that has vexed legal minds
for decades only to find (or, perhaps, to prove) that many people do not
want it solved. And that many of these people are lawyers.

(MacKinnon, 1987, pp. 222-3, footnotes omitted)

MacKinnon's account of reactions to anti-pornography legislation should

also serve to distinguish our arguments from those she attributes to liberal
critics. For her, despite the appearance that the law's maintenance of free
speech is disinterested, the administration of obscenity law is motivated by
the underlying self~interest of those holding power within the patriarchal
 Feminism and Law Reform 243

system. However, we would reject both the notion that the law must recog-
nise an inalienable right of the individual to be free from regulation in the
moral domain and that it feigns to do so because in reality it expresses an
ideological will to power. The issue we have raised concerning the Ordi-
nance is not that governmental regulation of morality is tantamount to
censorship. Rather, we have argued that if the ethical problems created by
pornography are to be taken seriously, so too are the historical and technical
means whereby the 'ethos' of pornography has been produced and may be
reformed.
Some form of what the Lockhart Report refers to as 'non-legal' regula-
tion will almost certainly continue to play a crucial role in managing the
production, circulation and use of sexual materials. We have shown that to
determine where the line should be drawn between legal regulation and
self-management the law has had to call on normative and interested
knowledges, there being no detached and objective insight into the 'truth'
about pornography. When the law calls on such know ledges, it does not act
in bad faith or fail to align itself with some transcendent ethical principle of
social justice. Sexual aesthetics and sexology are major disciplines of the
self which have come to play a role in constructing and governing sexualities;
yet their deployment of confessional strategies renders them not clearly
distinguishable from a predominantly male auto-erotics. Seen in this light,
the Hudnut decision is not retrograde. On the contrary, in balancing de-
mands for legal and administrative policing against demands for self-man-
agement, it cannot but leave open the question of what are to be appropriate
norms for assessing and regulating pornography. 9
There is no reason to assume that the present ethical forms of regulation
are established once and for all. Whilst philosophical liberalism and sexual
aesthetics cannot be ignored in current projects of law reform, they might
still prove precarious forms of self-management, their practice being al-
ways reliant on deployments of particular norms, know ledges and media in
a pornographic field which remains constitutively unstable. Evidence of
this instability is provided by the marked shift on the question of harm
within liberal jurisprudence over the past two decades, under the dual
influence of feminist campaigns on the status of women and recurring
governmental and familialist concerns with the welfare of children. 10
Mutation, complexity and disunity continue to characterise the porno-
graphic field. This field now includes a mix of old, modified and nascent
communications technologies - print, photography, film, cable television,
video, telephone, videophone, computer- whose distributions and uses call
for differential regulation according to criteria of reach, age, educational
levels, public decency standards and so on. It is also made up of an open-
244 On Pornography

ended series of established and novel interests in criticising, appreciating,

regulating, embracing or adapting particular forms of pornography. While
we have concentrated in this chapter on a major feminist critique of obscen-
ity law and pornography, other quite different claims are pressed. So, for
instance, some groups identifying themselves more or less with feminist or
radical culturalpolitics (and from whose viewpoint the Dworkin-MacKinnon
project would doubtless be seen as belonging to a puritanical feminism)
have adapted the pornographic repertoire as the basis for an aestheticised
and supposedly transgressive and therefore true performance of the self
(see, for instance, the treatments of avantgarde erotica by Elinor Fuchs
(1989), Linda Montano (1989) and Kate Davy (1989)). Or again, there are
various gay and lesbian celebratory uses of pornography to form and inten-
sify sexual identity through the re-functioning of heterosexual pornogra-
phy. Disregarding their divergent contents and targets, feminist, gay and
lesbian pornographies share a common form, now quite familiar to us. In
each case pornography structures an exchange in which knowledge of the
self is identified with the auto-erotic use of sexual representations and in
which pleasure is extracted from the forms of probing the 'true self' beneath
its mundane forms.
There is no certainty that affirmative uses of pornography escape or solve
the problem of harms. For instance, there are those who contend from their
own experience that the use of pornography is destructive, inasmuch as it
creates violence in the gay community (Pornography and Sexual Violence,
pp. 65-6). Surrounded by multiple interests and changes in the porno-
graphic field, the law could not plausibly be expected to realise a single
agreed truth of pornography. It has to mediate diverse and often competing
interests which may be well-established or, like child rights, still in the
process of crystallising. In these circumstances, the law can do no more than
continue to treat obscenity as a variable category. By calCulating the effects
of particular distributions in terms of different audience interests, suscepti-
bilities, competences and patterns of conduct, the law decides where the
moveable line should be drawn between legal regulation and the available
forms of self-regulation, not to mention regulation by administrative de-
vices such as constraints on public funding of the arts, or the adjudication
of legal or other actions generated by the resurgence of conservative cam-
paigns to mobilise 'public opinion' against pornography and to challenge
existing aesthetic conceptions of what is to be protected.
To return to our principal example and to clarify the relation between our
historical studies and the law reform project of Dworkin and MacKinnon,
let us say that we would endorse one element of that project but not the
other. This is not a coy reluctance to take sides. It is, rather, a direct
 Feminism and Law Reform 245

response to the fact that the case put by Dworkin and MacKinnon rests on
two incommensurate intellectual postures: one concerns objectification and
a recovery of repressed being; the other concerns discrimination and an
effective administration of a positive constitutional right. In the terms used
in this chapter, the former involves an objective in the field of aesthetics, the
latter an objective in the field of law and government. Their incommensu-
rability, as suggested in our brief anthropology of the aesthetic personality,
is historical and practical not conceptual and theoretical. For a heuristic
purpose, the distinction between self-management and legal regulation can
be aligned with the distinction between aesthetic and government rationales
for defining and dealing with pornography.
This alignment has a defmite advantage: it reminds us that however
clearly the distinction might be drawn in philosophical terms, in practice
there has been no stable boundary between regulation by the criminal law
and self-regulation by an aesthetic pedagogy. In both the United Kingdom
and the United States, obscenity law has come increasingly to regulate
pornography by grounding itself on pedagogic and aesthetic norms for
assessing the conduct of individuals and defining what is to count as
sexually 'mature' personalities. Even so, Dworkin and MacKinnon's philo-
sophical critique oflaw as failing to recognise pornography's objectification
of women cannot be articulated to legal policing in the form of a civil right.
While this critique may, as part of a social campaign, have effects on
people's attitudes, conducts and manners, its aesthetic components simply
cannot be made into law. However, while the law cannot give unified
expression to the categories of discrimination and objectification in the
form of a global civil right not to be harmed by pornography, it can indeed
construct and protect more limited and specific civil rights relating to anti-
discrimination objectives. In other words, we see a choice to be decided, not
a synthesis to be achieved. The choice is whether to pursue the fundamental
transformation of society in order to de-objectify women's being, or to
pursue specifically legal and administrative action to promote certain
mentalities and behaviours, and to discourage others. The second option
includes developing workplace codes of conduct aimed at reducing the
incidence of sexual harassment of women and de-eroticising professional
relationships and decision-making. 11
Such action may of course be deemed superficial, a mere masking of the
'fundamental' problem of domination. Between them, in their aesthetic
analyses, Dworkin and MacKinnon would reject each of the options. Dworkin
has argued that, given existing social and gender relations, the act of sex is
the fact of domination of women by men: 'that slit which means entry into
her - intercourse - appears to be the key to women's lower human status'
246 On Pornography

(Dworkin, 1987, p. 123). In her account, heterosexual mutuality can only

register as a naive contradiction in terms. The evidence is, however, that
even this forthrightness will not stop the fashioning of aesthetic images of
human emancipation and completeness that are resolutely heterosexual,
homosexual, bisexual, pansexual or nonsexual, each of which will claim in
the name of a true species to judge the forms of positive law and govern-
ment as constraining in more or less important respects.
As late in the piece as 1986, it was observed in the Hudson Report
(p. 233) that the history of pornography had not yet been written. We hope
to have made a beginning to the writing of this history, and to have learned
some lessons. The form of erotic sensibility which we have described is an
artefact of that particular phenomenon - book sex - whose history is a
composite of definite interests and capacities, print and other media tech-
nologies, commerce, religion, government, moral and psychological medi-
cine, relations of gender, levels of education and cultural literacy and, not
least, the historical interactions of aesthetics, police and law. To attribute an
essence to this contingent and mobile amalgam would be to fly in the face
of plausibility and the historical evidence. Changes in arrangements for
managing pornography cannot be assessed according to whether they prom-
ise the complete realisation of our sexual being. What can be achieved is
better management- by the legal and ethical means actually available -of
the forms of subjectivity which happen to have emerged for and among us.
Notes
2 THE PORNOGRAPHIC FIELD

1. See, however, the Postscript to Chapter 5 below.

2. At the same time, argues Marcus, the problem of pornography will ultimately
be solved by the harmonious working-out of the dialectic through which
individuals- and, more generally, culture itself- reach maturity: 'Pornogra-
phy is, after all, nothing more than a representation of the fantasies of
infantile sexual life, as these features are edited and reorganized in the
masturbatory daydreams of adolescence. Every man who grows up must pass
through such a phase in his existence, and I can see no reason for supposing
that our society, in the history of its own life, should not have to pass though
such a phase as well' (Marcus, 1964, p. 289).
3. The point is tellingly made in the concurring opinion of Chief Justice Warren,
1957, in Roth v. United States:

Present laws depend largely upon the effect that the materials may have
upon those who receive them. It is manifest that the same object may have
a different impact, varying according to the part of the community it
reached. But there is more to these cases. It is not the book that is on trial;
it is a person. The conduct of the defendant is the central issue, not the
obscenity of a book or picture. The nature of the materials is, of course,
relevant as an attribute of the defendant's conduct, but the materials are
thus placed in context from which they draw colour and character. A
wholly different result might be reached in a different setting.

(Roth v. United States, p. 495)

4. The fluctuating relation between the materiality of the body and the ethically
infused entity of the flesh is a sign of the degree to which the body has been
penetrated and organised by variable spiritual, somatic and social techniques
and imperatives. The body is as it were transformed into the flesh when, in
the context of the confessional relationship, it is endlessly scrutinised for
signs of the desire hidden deep within. This investigation, however, is more
than just semiotic. Under the pressure of the interrogation the body provides
a 'surface of emergence' for specific somatic and spiritual intensities, also
identified with the flesh.
5. For the full reference to this and all other cases cited, see the Table of Cases.
6. See, for example, Kaufmann (1966), Hunter (1966), Starr (1965, 1971) and
Slights (1981).
7. It is characteristic that the major collection of English and United States cases
(de Grazia 1969) is introduced in these psycho-aesthetic terms and is pre-
sented as a 'censorship' history. On the problem of obscuring historical and
legal distinctions by under-specifying the notion of 'censorship', see Saunders
(1990).

247
248 Notes

8. Indeed, seeking to evade a conviction, Curll himself argued in the Weekly

Journal that Henry Rhodes' 1683 edition of the work had not been prosecuted
(Foxon, 1964, p. 14).
9. 'Juridification' refers to the process of transfer into a legal register of certain
conducts, in this instance because they were now taken to bear on the
maintenance of public order and morality.

3 NINETEENTH-CENTURY ENGLISH OBSCENITY LAW

1. Works for the theatre were already subject to statutory regulation under the
Lord Chamberlain (Tribe, 1973, p. 64).
2. Routine indications of problems encountered in the summary policing of
offences relating to obscene or indecent materials in the second half of the
nineteenth century are found in the recurring practical inquiries on 'particular
points' of statutory regulation and interpretation dealt with in the columns of
the magistrates' publication, the Justice of the Peace. These inquiries, relat-
ing to such statutes as the Town Police Causes Act (1847), the Post Office
Act (1875) and the Indecent Advertisement Act (1889), arise in relation to a
series of problem behaviours for the policing of the streets, including inde-
cent conduct, gambling, gaming, drinking, public nuisance and so forth.
3. During the parliamentary debate, Lord Brougham had in fact asked 'how did
[Lord Campbell] propose to def"me what was an obscene publication' (Hansard,
Lords, 25 June 1857, CXLVI, p. 329, but the Bill passed without this question
being answered).
4. Alongside the criminal law concerning obscene publication there exists the
civil law provision - now in disuse - whereby copyright protection is with-
held from works that are found obscene. The logic behind this arrangement is
that the civil courts would not intervene to protect the property in a work
whose publication was against the public interest, possibly to the extent of
constituting a criminal offence. This doctrine, whose historical development
rests largely on a series of decisions in the court of Chancery, has in fact
operated without ever generating its own test or definition of obscenity, such
as was constructed for the criminal law in Regina v. Hicklin. Nor was this
criminal law defmition adopted by the civil courts. Phillips (1977, pp. 157-
8) comments thus on the correlation between civil and criminal standards of
obscenity:

[T]he expressed assumption behind [early civil cases] was that to deprive
the author of protection could hardly benefit the infringer who by his very
action was committing a criminal offence (though, curiously enough, in
none of the early leading cases did the successful infringer attract criminal
charges). This underlying notion may still be reflected today in current
judicial attitudes. It certainly would appear to be convenient to kill two
birds with one stone, as it were, by making the one test satisfy both
criminal and civil needs, and the law could then not stand accused of
setting double standards; but there may be an objection to this, based upon
the different functions of diverse laws in distinct jurisdictions.
 Notes 249
Criminal matters, for example, are in essence disputes between state and
individual as to the acceptability to the former of the deeds of the latter;
the burden of proof upon the prosecutor is heavy and weighted in the
individual's favour; sine<; it is the freedom of individual action which is at
stake as much as the conduct of the individual brought before the court,
the law is construed in a manner which, in theory, preserves for the
individual the greatest degree of freedom of speech and action compatible
with the intentions of the law-makers. Contrast civil proceedings, where
the matter in dispute is that of the ownership or possession of property
held by one man as against some or all of his fellow men, where the rights
of litigants are balanced along with a general and all-pervasive body of
rules known as 'public policy', and where the burden of proof is far easier
to discharge; granted, issues such as First Amendment freedom of speech
may be touched upon, but they are not central to litigation. Thus where
two separate jurisdictions must apply the same test of obscenity, may there
not be some inherent danger in creating an anomaly by applying the same
test?

5. Radzinowicz (1959) suggests that the influence of the Vice Societies was
significantly limited by their tenuous relation to liberal and other political
organisations.
6. The Joint Select Committee was established at the time of a dual concern:
with popular gambling crazes- competitions and lotteries- conducted in the
popular press, and with postcards, advertisements for contraception and abor-
tion distributed by mail, often from abroad (for example from France, but also
from Egypt, where a penny post to England had been set up). What the
lotteries and the indecent publications had in common were technical means
of communication - press and mail - which posed problems for the routine
established policing of local streets and traditional agents of 'demoralisation',
that is, local and well-known 'rogues' and 'vagabonds'. New markets and
new forms of conduct were emerging which eluded the constables on the
beat.
7. On the postal regulation .of obscene materials, see Manchester (1983).
8. For the detail of the record, we note the following factual errors in accounts
of Curll's case. Thomas (1969, p. 82) names the three judges as Raymond,
Fortescue and Reynolds. The first of these names is wrong; it should be Mr
Justice Probyn. The Williams Report (1979, p. 167) has the Chief Justice say
that 'if it were not for the case of Read, he would see little difficulty in it'. In
fact these are the words of the Attorney General prosecuting, in response to
the opening by Curll's counsel, Mr Marsh. The error arises from a mis-
reading of a vocative at the head of the concluding paragraph of the Attor-
ney's statement ('Chief Justice, I think this is a case of very great conse-
quence, though if it was not for the case of The Queen v. Read, I should make
no great difficulty of it.') The Chief Justice is responding to this statement, so
we can take the Attorney's 'Chief Justice' to refer to him, not to signal the
reporter's identification of the speaker.
9. On these courts, see Chapter 8, 'The Bawdy Courts', in Hill (1964). On the
state and functions of the eccelesiastical courts at the start of the eighteenth
century, see Archer (1956).
250 Notes

10. Reynolds (1975, p. 222) warns against too much reliance on early obscenity
decisions since 'the eighteenth-century legal precedents for punishment of
obscene publication have politics as their basis, not close legal reasoning'.
Curll had published the memoirs of John Ker, a spy in the service of Queen
Anne, which reflected unfavourably on the House of Hanover. According to
Reynolds (p. 221), George II intervened in the case by having Chief Justice
Fortescue replaced by Francis Page, 'the "hanging judge" notorious in Pope's
poems, Johnson's Life of Savage, and Fielding's Tom Jones'. With Page's
appointment, the court rapidly and unanimously found in favour of punishing
Curll.

4 LITERARY EROTICS

I. We use the term 'serious literature' in a value-neutral manner to refer to those

works appropriated by the educated in pursuit of various kinds of cultivation.
2. References made to the question of obscenity in the columns of the Justice of
the Peace in the early decades of the twentieth century show that for magis-
trates the main practical problem was still the policing of mass-
produced pornography which was readily distinguishable from serious
literature.
3. Of course, some serious literature did come into conflict with the police in
relation to obscenity law in England in the late nineteenth century. So, for
example, prosecutions were brought against Charles Bradlaugh and Annie
Besant in 1877 for publishing Charles Knowlton's The Fruits of Philosophy,
Henry Vizetelly in 1888 for publishing an English translation of Zola's La
Terre, and George Bedborough in 1898 for selling Havelock Ellis's Sexual
Inversion (Hyde, 1964, pp. 16-17; Ellis, 1898). However, such cases are
relatively few and far between and hardly justify the view found in Robertson
(1979, p. 30) that the Hicklin formulation was a weapon used systematically
against serious literary and scientific works.
4. References are to the text reprinted in Lawrence, 1936, pp. 170-87.
5. In this period various cooperative inter-governmental attempts were made to
promote international policing of the traffic in obscenity and related harmful
practices. On the suppression of obscene publications, see for example,
League of Nations (1928).
6. Brentford's position was shared by others involved in executive and judicial
decision-making at the time. The Public Prosecutor, Edward Atkinson, re-
plied as follows to Havelock Ellis who had sent him his essay 'The Revalua-
tion of Obscenity', written after the unsuccessful appeal against the banning
of Radclyffe Hall's The Well of Loneliness and suggesting that pornography
in general should be deregulated since obscenity was a fundamental human
impulse whose suppression is to be blamed for the pornographic betrayal of
sex:

May I respectfully suggest that you are in advance of the times in holding
that education would now sufficiently protect the young from the dangers
of really pornographic literature and pictures? Quite apart from the prob-
 Notes 251
lems of literary works- I instance some of D. H. Lawrence's by way of
contrast - such practical experience as I have had leads me to think that
really pornographic wares still in these imperfect days need that attention
of what you possibly regard as a clumsy weapon viz: the criminal law.
(Cited in Grosskurth, 1980, p. 400)

The official who makes this statement is not blind to the possible merits
which literary representations of sex have for some readers, but subordinates
them to medical-moral criteria in the context where capacities of reading and
self-regulation remain unevenly distributed across the population as a whole.
7. The title page of Elton Boyd's 1887 reprint of Vitality: How Wasted and
Preserved states '14th Edition of Ten Thousand'.
8. Thus Carpenter wrote:

The redemption of Sex, the healthy and natural treatment of it in Art, is

one of the greatest works any artist of today has before him to carry out
... The same with the literary artist, the poet or novelist. Notwithstanding
the outlines sketched by Whitman, and less healthily by Zola and Ibsen, the
world still waits for anything like a large and artistic treatment of this grand
subject.
(1917 [1898], p. 80)

Lawrence concludes 'Study of Thomas Hardy' thus:

Now the principle of the Law is found strongest in Woman, and the
principle of Love in-Man. In every creature, the mobility, the law of
change, is found exemplified in the male; the stability, the conservatism is
found in the female .... It needs that a man shall know the natural law of
his own being, then that he shall seek out the law of the female, with which
to join himself as complement .... He must with reverence submit to the
law of himself: and he must with suffering and joy know and submit to the
law of the woman: and he must know that they two together are one within
the Great Law, reconciled within the Great Peace. Out of this final knowl-
edge shall come his supreme art. There shall be the art which recognizes
and utters his own law; there shall be the art which recognizes his own and
also the law of the woman, his neighbour, utters the glad embraces and the
struggle between them, and the submission of the one; there shall be the art
which knows the struggle between the two conflicting laws and knows the
final reconciliation, where both are equal, two in one, complete. This is the
supreme art, which yet remains to be done.
(1936, pp. 514-6).

9. Thus Heath cites the poetry of Adrienne Rich to link a refusal of any fixed
notions of essentially male or female language with an androgynous play of
language opening onto a form of 'desire and pleasure beyond the orders, the
commandments, of identity' (Heath, 1982, pp. 135--{)). While liberation from
normative and ideological 'sexuality' is primarily imagined as part of an
ethical and political future (cf. p. 152), Heath also invokes the Romantic
252 Notes

theme of a unity of sexual expression and being which preceded the alienat-
ing imposition of modem Western sexual knowledges and identities: 'In
previous ages ... there had at least existed the possibility of speaking sexual
experience in terms distinct from regulation and the finality of an economic
exchange, in terms that stray and run over in pleasure; not "spending" but
"bliss" ... ' (p. 14).
10. Our main example, The Science of a New Life by John Cowan, MD (1970,
originally published 1874) is a compendium of themes which pervade mid-
dle-class medical manuals in Britain, the United States, Australia and other
countries in this period. Other relevant texts include Elizabeth Blackwell,
(1894), Elton Boyd (1884), and P. H. Chevasse (1879). Further discussion of
such publications is to be found in Haller and Haller (1974).
11. As Haller and Haller point out (1974, pp. 97-9), major differences on ques-
tions of marriage and sexuality can be seen between writers such as William
Acton and Elizabeth Blackwell. Acton holds that women have little capacity
for sexual feeling and that this is naturally ordained to prevent the exhaustion
of male sexual vitality, and yet is also one cause of apparent or temporary
impotence in men (1865, pp. 111-5). Against this, Blackwell states that those
who deny sexual feeling to women 'confound passion and appetite' (1894, p.
49), attach sexual passion exclusively to the act of coition (p. 51) and neglect
the importance in personal and social arrangements of the varying manifesta-
tions - physical, reproductive, intellectual, emotional and moral - of the
sexual faculties (p. 46). She argues that apprehension of sexual congress is
not a natural female trait but results for many women from painful experience
of sex, brutal or awkward conjugal approaches or fear of injury from child-
birth (p. 50).
12. Unlike Ellis's longer 'scientific' studies, texts such as The Objects of Mar-
riage and Little Essays of Love and Virtue were available in cheap editions
and intended for a popular readership. Ellis considered that recognising the
sexual personality, which meant recognising the erotic rights of women, was
a necessary part of acknowledging the more general rights of women (1922,
Chapter V), although the very identification of women with the erotic was
seen by many contemporary feminists as problematic (cf. Rowbotham and
Weeks, 1977, p. 13).
13. On Van de Velde and similar sex reformers in the early twentieth century, see
Margaret Jackson (1987) and Sheila Jeffreys (1983).
14. Lawrence records that in his early days Edward Garnett had suggested to him
that it was necessary to go the whole way in describing sex and that this
suggestion stayed in his mind until he wrote Lady Chatterley's Lover (letter
to David Garnett, 24 August 1928, in H. T. Moore (ed.) (1962, Volume 2,
p. 1079).
15. Cowan writes that women should have such rights as those of suffrage,
property, equal participation in government, employment and education, and
the right to their own person which husbands insisting on their 'marital rights'
have ignored (pp. 380-l). As Rowbotham and Weeks point out (1977, p. 13),
in the second half of the nineteenth century there was an overlap between
social purity movements (in which writers like Cowan participated) and
middle-class feminism on the issue of women's rights over their own bodies.
16. See also Paul Delaney (1978).
 Notes 253
17. For details of the original publication and reception of Lawrence's work, see
James Cowan (ed.) (1982); Draper (ed.) (1970); Roberts (ed.) (1963); and the
Introduction and Appendix in Lawrence (1936).
18. To pick up some of the voices from this circle: Lawrence saw in Burrow's
psychological theories an attempt akin to his own to overcome the didacti-
cism of 'the Freudian method'; Havelock Ellis, writer of literary as well as
sexological works, read some of Lawrence's novels and referred ambivalently
to their insight into sexual love (Grosskurth, 1980, p. 328); while the psycho-
analyst Ernest Jones, writing to Ellis, suggested that the idea of 'sensational-
ism' in Lawrence's novels is equivalent to his own use of the term 'autoerotism'
to describe an 'essentially objectless' activity of the self (Grosskurth, p. 391).
19. Beal (1961, pp. 112-3) records the view of Diana Trilling that in the 1920s
Lawrence was seen in her circles as a great liberal thinker rather than a great
writer: 'we thought his metaphors were translateable into a programme for
practical conduct'.
20. In a similar vein, Mark Schorer's use (1967, pp. 250--66) of Lawrence's 'The
Horse Dealer's Daughter' displays the typical featUJ:es of mid-century New
Criticism and practical criticism, insisting on the aesthetic unity of form and
content, and the need continually to adjust one's responses by rehearsing the
distinction between aesthetic and didactic modes of reading and writing:

So what does the story tell us at last? It tells us that human love, love
between man and woman, is, first of all, living ... that it is elemental ...
that love is terrible ... and ... that love is crucial ... All this exists in the
densely physical symbolic texture and movement of the story, and we must
ourselves experience it through that texture and movement. To abstract it
as we have just done cannot be a successful operation, but a mere pointing
back to the story itself; if it could be successful, there would be no need for
such stories. The meaning is the prose that carries it. (p. 266)

21. Leavis's early pieces on Lawrence, such as those appearing in the Minority
Press edition of For Continuity (1933), originally had a limited circulation
and made little general impact on educators (cf. Coombes (ed.), 1973, p. 45).
References to Lawrence's work in Leavis and Thompson's Culture and
Environment ( 1933 ), designed for use in school, university and teacher train-
ing, relate to the question of literary value and the loss of the organic
community rather than to representations of sexuality. The most detailed
work by Leavis assimilating Lawrence into the system of pedagogic criticism
is D. H. Lawrence: Novelist, first published in 1955. For data on the stages of
published writings about Lawrence and his work - in which differences may
be discerned between the earlier specialised circulation and the pedagogic
distribution which was established from the late 1940s- see Coombes (ed.)
(1973) and James Cowan (ed.) (1982 and 1985).
22. The stress on the formation of the reader's own sensibility is .found through-
out Leavis's writings on Lawrence, including his criticism ofT. S. Eliot for
fmding fault with the latter's work when the problem lies, supposedly, with
Eliot's own failure to read the work and comprehend literature's relation to
sexuality dialectically. Once the dialectical method brings literature and
sexuality together, of course, radically different evaluations of creative achieve-
254 Notes

ment are possible. So, for instance, Vivas (1960) re-evaluates Lawrence's
works in a way that is consciously less generous towards Lawrence than is
Leavis's appraisal, but he does so within the same framework of dialectical
criticism. More generally, the aestheticising of sexual knowledges has made
it possible to disdain whole categories of discourse as inferior to 'literature'
since they impose didactically and normatively upon experience, as we see in
Leavis's denunciation (1933, pp. 147-8) of the work of Marie Stopes, or in
Marcus's contrast (1974) between the error of sexual medicine and the truth
of sexual literature.

5 TWENTIETH-CENTURY ENGLISH OBSCENITY LAW

1. Ashbee (1877) provides encyclopedic testimony to this ethos. Combining the

obsessive empiricism of the bibliophile and the fervid interest of a connois-
seur of the perverse, Ashbee's work is also a monument to the reciprocal
relation between the techniques of knowledge and the forms of pleasure in
nineteenth-century biblio-erotics.
2. In Chapter 3 we noted the concern expressed in the 1908 Report from the
Joint Select Committee on Lotteries and Indecent Advertisements at technical
forms of communication - the press and the mail - which could not be
regulated by the means of policing which accompanied the three-sector
organisation of the literary field described here.
3. In our closing remarks in this book, we note that programmes for the eradi-
cation of sexual harassment in the workplace have recognised that works of
art cannot be granted total immunity from regulation.
4. In the 1928 prosecution of Jonathan Cape for publishing Radclyffe Hall's The
Well of Loneliness a similar defence strategy also founded. There, Norman
Birkett KC for the publishers announced his intention to call 'evidence from
every conceivable walk of life which bears on the test whether the tendency
of this book is to deprave and corrupt'. Havelock Ellis in fact declined to be
a witness for the book. Rolph reports on the case, indulging his usual taste for
speculative personal asides:

[Birkett] added that a more distinguished body of witnesses had never

before been called in a Court of Justice. Sir Charles Biron [the presiding
magistrate] said he doubted whether their evidence would be admitted, and
Birkett retorted that if it couldn't a magistrate was a censor of literature.
Biron, who probably thought he was, said that the witnesses could not be
allowed to express their opinions upon matters which were for the decision
of the court.
(Rolph, 1969, p. 79)

It is now accepted that Birkett erred in asking his very first witness, the
literary critic Desmond MacCarthy, whether the book was in his view ob-
scene. Certainly no evidence of literary merit was admitted from that point
on, either from MacCarthy or the thirty-nine other witnesses. Rolph in fact
formulates the question that, in his opinion, Birkett should have put: 'Whether
 Notes 255
this book is obscene or not - and that of course is a matter for the learned
magistrate - is its publication advantageous to the pursuit of literature?'
(1969, p. 80).
5. The degree of convergence between law and police has been contingent upon
cultural and historical circumstances. In the United States, for instance, there
have developed close links between statutory-judicial interpretations and
decisions and police and local city council measures. See Chapter 8.
6. The notion of a public good defence is sometimes traced back to a nineteenth-
century source in the 'submission' attached by Sir James Fitzjames Stephen
to Article 228 of his Digest of the Criminal Law:

A person is justified in exhibiting disgusting objects, or publishing

obscene books, papers, writing, prints, pictures, drawings or other repre-
sentations if for the public good, as being necessary or advantageous to
religion or morality, to the administration of justice, the pursuit of science,
literature or art, or other objects of general interest; but the justification
ceases if the publication is made in such a manner, to such an extent, or
under such circumstances, as to exceed what the public good requires in
regard to the particular matter published.
(Stephen, 1877, p. 173)

In a footnote, a recognition of the variable nature of obscenity is evident:

[T]he publication of an edition of Juvenal, Aristophanes, Swift, Defoe,

Bayle's Dictionary, Rabelais, Brantome, Boccaccio, Chaucer, etc. cannot
be regarded as a crime; yet each of these books contains more or less
obscenity for which it is impossible to offer any exeuse whatsoever. I know
not how the publication of them could be justified except by the considera-
tion that upon the whole it is for the public good that the works of
remarkable men should be published as they are, so that we may be able to
form as complete an estimate as possible of their characters and of the
times in which they lived. On the other hand, a collection of indecencies
might be formed from any one of the authors I have mentioned, the
separate publication of which would deserve severe punishment. (p. 173)

The 'separate publication' of the part-edition would, as we have suggested,

have a different circuit of distribution - that of popular pornography - from
that of the classic edition.
7. Regina v. Penguin Books Ltd was the first trial but the second prosecution
under the new Act. The first prosecution was Shaw v. DPP (1961), in which
action was taken against Shaw for the publication of The Ladies Directory, a
collection of contact advertisements for London prostitutes. These first two
prosecutions show the varied couplings which the category of obscene pub-
lication continues to produce.
8. No official transcript of the trial exists. Rolph (ed.) (1961) provides a tran-
script, laced with partisan observations and asides against the Prosecution,
which was published as a Penguin Special, three months after the acquittal.
9. During cross-examination of Dr Robinson, Bishop of Woolwich, the Pros-
ecution seeks clarification of the nature of the admissible expertise. The
256 Notes

Judge's view was that Section 4 was 'sufficiently elastic' to allow a bishop to
speak as an 'expert' on literary merit (Rolph, 1961, p. 63).
10. Rolph euphorically interjects that by the time Anne Scott-James took the
stand, 'there had appeared a tendency to stop treating the witnesses as literary
experts, or ethical experts, or "other merits" experts, and just treat them as
experts' (Rolph, 1961, p. 103).
11. In fact, as already noted, 200 000 copies of Lady Chatterley's Lover had been
printed (Morpurgo, 1979, pp. 314-25).

6 THE LIMITS OF LAW REFORM

1. The difficulties in attaching a coherent meaning to the notion of liberalism are

well known. Not only is it split between economic, political and philosophi-
cal kinds but each kind is subject to varying descriptions. We use the term
philosophical liberalism to refer to the doctrine that political liberties and
rights are grounded in the rational capacities of the individual subject, a
notion variously addressed in the works of Locke, Hume and Mill. We do so
in order to distinguish governmental liberalism which, while it may adopt
'liberal' measures- non-coercive administrative systems, rights-based juris-
dictions -does so on instrumental grounds of efficiency and productivity.
Some believe that governmental liberalism is ultimately grounded in philo-
sophical liberalism's rational individual via the mechanism of democratically
elected legislatures. Our reasons for rejecting this article of faith and for
insisting on irreducible differences between governmental and philosophical
liberalism will emerge as the chapter progresses.
2. It can be observed that the Kantian currents informing modern moral philoso-
phy render it startlingly incapable of discussing this issue. For Kant the
independence of moral judgement from all calculations of personal and social
interest is what makes it moral. Yet we learn from historians of morality that
both Catholic and Protestant traditions of casuistry routinely modified the
absolutism of their moral imperatives after assessing the ethical abilities of
their flocks and the particular circumstances in which the imperatives were to
be applied. See, for instance, Kittsteiner (1988). Legal judgement can be
viewed as inherently casuistical in this regard, as it is perpetually adjusting
moral absolutes to historical circumstances.

7 UNITED STATES OBSCENITY LAW

1. All Amendments to which we refer, together with details of their judicial

history, are to be located in the relevant Constitutional Amendments volumes
of the United States Code Annotated (hereinafter USCA).
2. A common reference point on these issues is the followingstatement made by
Mr Justice Murphy:
 Notes 257
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane,
the libellous, and the insulting or "fighting" words - those which by their
very utterance inflict injury or tend to incite an immediate breach of the
peace.
(Chaplinsky v. New Hampshire (1942), pp. 571-2)

Certain constraints may also apply to categories of commercial speech (see,

for example, Pittsburgh Press Co. v. Pittsburgh Commission on Human
Relations (1973)).
3. In a similar vein, Edward de Grazia and Roger Newman see in the regulation
of sexual and other contents of communications in the United States the
presence of a 'censorial impulse' which should alarm those who care about
'the free flow of ideas': 'Danger to the open society lurks when any group
seeks to impose its values on the rest of the populace. At stake is the First
Amendment and, ultimately, the mind of America' (1982, p. 384).
4. For an account (informed by libertarian assumptions about censorship) of
positions adopted on these First Amendment questions by various members
of the Supreme Court in the period from Roth to Miller, see de Grazia and
Newman (1982, pp. xix-xxii, 95-139).
5. We shall refer to this document as the Lockhart Report and, where the
meaning is clear from the context, the Report. At this stage, we are concerned
with the majority view of the Commission. We refer later in this chapter to
dissenting statements.
6. By 'explicit sexual materials', the Commission means 'the entire range of
explicit sexual depictions or descriptions in books, magazines, photographs,
films, statuary, and other media' including 'the most explicit descriptions or
what is often referred to as 'hard-core pornography'" (p. 72, n. 2). The
Commission's use of the harm condition is seen in its subsidiary recommen-
dations: 'We recommend legislative regulations upon the sale of sexual
materials to young persons who do not have the consent of their parents, and
we also recommend legislation to protect persons from having sexual mate-
rials thrust upon them without their consent through the mails or through
open public display' (p. 57).
7. Stanley Fleishman, for example, claims that the views both of President
Nixon, reflected in this rejection, and of the Supreme Court, evident in its
policy on obscenity, 'represent a radical break from basic First Amendment
principles affording the broadest possible protection to books, films and other
media of expression, regardless of their content' (1973, p. 19). See also de
Grazia and Newman (1982, pp. 129-31).
8. So, for example, the Commission endorses various uses of explicit sexual
materials in educational contexts, including the practice followed in certain
medical schools of presenting materials usually classified as pornographic or
obscene in order to deal openly with the sexual interest of the students
themselves such that in tum they willleam to deal with the sexual interests
of patients, including minors (pp. 327-9). More generally the Commission
urges governmental agencies concerned with education, child health and
258 Notes
mental health to 'include a wider range of topics relating to human sexuality,
specifically including encounters with explicit sexual materials' (p. 56).
9. Cf. Jacques Donzelot (1979) on the historical negotiations occurring between
governmental pedagogies (including what he calls the 'psy' complex) pro-
moting self-management, in which social norms become more or less inter-
nalised as personal values, and 'tutelary' administrations of problematic
relations and conducts within the 'policing of families' in France.
10. Cf. the Lockhart Report, (pp. 380-94) and the Attorney General's Commis-
sion on Pornography and Obscenity Final Report (1986, pp. 353-403, 433-
765) on obscenity laws and their enforcement. Hereafter we refer to the latter
document as the Hudson Report, or where the meaning is clear in context, the
Report. The Commission which produced this report was appointed in 1985
by the Attorney General of the USA, Edwin Meese.
11. See, for instance, Carlin Communications, Inc. v. Federal Communications
Commission (1984) where regulations promulgated by the Federal Commu-
nications Commission to regulate the dissemination of pornographic materi-
als by telephone are challenged.
12. Historical reviews of United States obscenity law in relation to English law
are contained in the working summaries of cases such as Roth and in the
historical sections of the Lockhart Report (pp. 348--60) and the Hudson
Report (pp. 236-48).
13. This is a consolidated case in which the decision covers two appeals. Previ-
ous court cases dealing with constitutional rights in relation to obscenity had
been concerned with whether particular works were obscene under certain
statutes (cf. United States v. One Book Entitled Ulysses by James Joyce
(1934), in which the book was found not to be obscene within the Tariff Act
of 1930) and not whether statutes proscribing obscenity were themselves
constitutionally defective, specifically in relation to First Amendment provi-
sions. In Roth, the Court limited itself to the constitutional questions of the
validity of the statutes and was not concerned with the specific facts of either
case. The significance of Roth is that a majority of the Court agreed on the
standard to determine what constitutes obscenity.
14. After Roth, legislatures continued to have the latitude to prohibit distributions
of explicit sexual materials to children or the obtrusive presentation of such
materials to unconsenting adults, in terms stricter than those applying to
distributions to consenting adults which are the concern of that case.
15. The references to harms of obscenity are more explicit in the trial judge's
opinion in United States v. Roth (1956), where constitutional rights are
weighed up against what is referred to explicitly as the law's role in admin-
istering a 'public policy' targetting recognisable forms of 'commercialized
obscenity' and 'salable pornography' (pp. 797-9).
16. From the cases documented by de Grazia (1969, pp. xvii-xxxii) it is possible
to trace the emergence of literary aesthetics in jurisprudential campaigns in
the United States in the 1940s and 1950s. For other significant literary trials,
see Besig v. United States (1953), in which Henry Miller's Tropic of Cancer
and Tropic of Capricorn are found obscene; and Memoirs v. Massachusetts
(1966), in which Fanny Hill is found not to be obscene.
17. In Jenkins v. Georgia ( 1974) the Supreme Court made clear that regardless of
what local community standards might be, they could not operate to establish
 Notes 259
that a work such as the film Carnal Knowledge appeals to prurient interest or
is patently offensive.
18. It may be appropriate here to catalogue some of the ways in which 'govern-
ment and community interests' in controlling obscenity have been specified
as the courts weigh them up in relation to rights of expression. These interests
include minimising influences identified in psychological, moral and ethical
terms as harmful to particular groups, especially minors, and checking the
exploitation of persons involved in the production of pornography (cf. the
Hudson Report, pp. 595-745). They also include maintaining levels of de-
cency, public safety and the welfare of neighbourhoods. These concerns
extend into controlling public nuisance and crime associated with pornogra-
phy and its often zonal distribution (Star Satellite, Inc. v. City of Biloxi
(1986), monitoring activities in commercial and business districts (cf. Brown
v. Pornography Commission of Lower Southampton Township (1982), and
regulating industrial practices including the conditions, duties and obliga-
tions of employees within retail institutions and places of exhibition (Pack v.
City of Cleveland (1982)). The policing of obscenity involves using laws
against criminal activities ranging from large-scale production and distribu-
tion of illicit materials to what the Hudson Report refers to as the 'cottage
industry' of child pornography (Part 2, Chapter 7, and Part 4 Chapter 4). A
characteristic deliberation on these kinds of interests is found in the Supreme
Court's opinion, delivered by Mr Chief Justice Burger, in Paris Adult Theatre
I v. Slaton (1973). The Court holds that there are 'legitimate state interests at
stake in stemming the tide of commercialized obscenity': these include 'the
interest of the public in the equality (sic) of life and the total community
environment, the tone of commerce in the great city centers, and, possibly,
the public safety itself' (pp. 57-8). The Court refers (p. 59) to the Hill-Link
Minority Report in the Lockhart Report and to other legal opinion for the
view that there may indeed be a link between obscenity and the development
of dispositions towards anti-social conduct. It acknowledges that there may
not be conclusive proof that such a link exists but - in contrast to the Lockhart
majority which argues that there should therefore be no restrictions on access
to explicit sexual materials for consenting adults - rules (p. 61) that it is
reasonable to determine 'that such a connection does or might exist' and
reiterates that in Roth it was implicitly accepted that a legislature could act on
such a conclusion to protect 'the social interest in order and morality'.
19. The regulation of pornography also involves governmental censorship boards,
industry self-regulation and education departments (cf. de Grazia and Newman
(1982, pp. xv-xxii, 3-151)).
20. See 18 United States Code Annotated Section 1467(d).
21. These due process requirements are related to the Fourth Amendment guard-
ing the right to be secure against unreasonable searches and seizures. It is
often stated in the courts that since obscenity cases involve First Amendment
issues they require more stringent application of Fourth Amendment safe-
guards than do other criminal cases (Macon v. State (1984)). Various other
checks on warranty procedures are found in the courts. So, for example,
police carmot delegate official functions of search and seizure to unauthorised
persons. In State v. Furuyama (1981), for example, it was found that the
purchase of materials selected by members of a citizens' group participating
260 Notes
in a 'joint effort' with an undercover police officer to gather evidence in a
bookstore constituted unlawful seizure.
22. The opinion delivered in Smith v. California (p. 150) is that the existence of
a mens rea ('guilty mind') is 'the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence' and that elimination of
the scienter requirement may substantially restrict the freedom of speech and
of the press.
23. Mr Justice Stewart's comment has often been taken as a sign of the self-
evidently subjective nature of judicial decision-making on obscenity. It is
perhaps forgotten that he was making the·point that court decisions since Roth
had been constitutionally limiting obscenity to hard-core pornography and
that one could recognise the latter without having to define it exhaustively.
He was in no danger, then, of confusing the cause of the trial, The Lovers -
'a French film depicting an unhappy marriage and the wife's falling in love
with an archaeologist, and including in the last reel an explicit, but fragmen-
tary and fleeting love scene' (Jacobellis, p. 184)- with the less genteel class
of hard-core pornography.
24. Several of the federal statutes which we cite in this section, relating to the
various law enforcement agencies, are amongst those which the Lockhart
Report recommends be repealed (p. 75). Local, state and federal policing
involves a wide range of statutes, practices and policies (for instance, the
Federal Bureau of Investigation has a role in relation to 18 USCA Sections
1462 and 1465 prohibiting transportation of obscene matters in interstate or
foreign commerce). On the role of police departments and the FBI see the
Lockhart Report (pp. 386-8, 393-4) and on problems in policing, especially
'under-enforcement', see the Hudson Report (pp. 353-381, 415-8). The
latter report, in contrast to the former, recommends extensive review and
updating of federal, state and local obscenity legislation and law enforcement
activities (pp. 459-593).
25. See 19 USCA Section 1305 of the Tariff Act; also 18 USCA Section 1462.
26. In any such proceeding 'any party may have an appeal or the right of review
as in the case of ordinary actions or suits' (19 USCA Section 1305, p. 48).
27. See 18 USCA Section 1461; also 18 USCA Section 1463 and 39 USCA
Section 3006.
28. See 39 USCA Section 3010. Cf. the Lockhart Report, pp. 389-90.
29. See 18 USCA Section 1464 and 47 USCA Sections 503(b) and 510.
30. See, for example, People v. Lerch (1985); Upper Midwest Booksellers Asso-
ciation v. City of Minneapolis (1985); and on the question of minors' access
to cable in the home see the Hudson Report, pp. 579-82.
31. On historical and legal aspects of the construction of the right of privacy in
the USA, see Hixson (1987). A major text here is Samuel D. Warren and
Louis D. Brandeis (1890) which established the concept of a right to privacy
(as a right to be let alone) independently of existing rights of property,
contract and the like.
32. In Paris Adult Theatre 1 v. Slaton, the Court states: 'If obscene material
unprotected by the First Amendment in itself carried with it a "penumbra" of
constitutionally protected privacy, this Court would not have found it neces-
sary to decide Stanley on the narrow basis of the "privacy of the home,"
which was hardly more than a reaffirmation that "a man's home is his
 Notes 261
castle'"(p. 66). In an accompanying footnote, the Court reiterates that the
right of possession is restricted to a place, in contrast to certain other consti-
tutional privacy rights which are not just concerned with a particular place but
with 'a protected intimate relationship' and so extend to various places (as the
privacy of, for instance, family and marriage extends to the doctor's office,
the hotel room or the hospital).
33. See, for instance, United States v. 37 Photographs (1971); United States v.
Reidel (1971).
34. Cf. the statements of those testifying in the Minneapolis public hearings
(Pornography and Sexual Violence, especially pp. 59-77) that pornography
is used by men as a device for sexual excitation and experimentation in real-
life situations and relations. These uses include clients requiring prostitutes to
join in often violent scenarios from pornography: 'Women were forced
constantly to enact specific scenes that men had witnessed in pornography.
They would direct women to copy postures and poses of things they had seen
in magazines and then they would take their own pictures of the women' (p.
72, Ms Z: Prostitutes' experience of pornography).

8 FEMINISM AND LAW REFORM

1. See Reinhart Koselleck (1988). A parallel account of the emergence of

technically and rationally organised forms of law and politics - although one
in which the difference between state and civil society is less absolute than in
Koselleck- can be found in Foucault (1981).
2. An attempt to introduce a similar ordinance in the City of Minneapolis had
been unsuccessful when a Bill introducing an amendment to that city's Civil
Rights Code was vetoed by the Mayor after having been passed by the
relevant Council. For a transcript of the first of two ordinances thus vetoed,
see Constitutional Commentary, Volume 2, Number 147, 1985, pp. 181-9.
The transcript of the Minneapolis public hearing held in conjunction with this
ordinance appears in the Everywoman publication Pornography and Sexual
Violence (1988). Interest developed in other cities, states and countries in
developing Bills along similar lines (see Seator, 1987, p. 299 including note
8; Pornography and Sexual Violence, pp. 4-5). A version of the Dworkin-
MacKinnon ordinance was signed into law by the Mayor of Indianapolis,
William H. Hudnut, on 1 May 1984 with amendments on 15 June 1984. It
was promptly challenged in the courts on constitutional grounds by various
parties including the American Booksellers Association, Inc. and the Asso-
ciation for American Publishers, Inc. - both major representatives of trade
interests with elements located in but reaching well beyond Indianapolis -
together with other distributional, library, retail, video-rental and reading-
public interest groups or individuals. The United States District Court, S. D.
Indiana, Indianapolis Division, granting that the action was a justiciable case
or controversy under Article III of the Constitution, whereby plaintiffs need
not be the subject of an administrative or judicial proceeding at the time the
lawsuit is initiated, held that the ordinance was unconstitutional on First and
Fifth Amendment grounds (American Booksellers Association, Inc. v. Hudnut,
262 Notes
198 F. Supp. 1316 (1984)). The decision was affinned by the United States
Court of Appeals, Seventh Circuit, (771 F. 2d 323 (1985)), whose fmding
was summarily affirmed by the United States Supreme Court (106 SCt 1"172
(1986), rehearing denied 106 SCt 1664 (1986)).
3. In discussing the feminist ideas and goals which underlie the anti-pornogra-
phy laws, Dworkin identifies pornography's subordination of women with
objectification defmed in a way that subsumes discrimination as dehumanisa-
tion:

Objectification occurs when a human being, through social means, is

made less than human, turned into a thing or commodity, bought and sold.
When objectification occurs, a person is depersonalised, so that no indi-
viduality or integrity is available socially or in what is an extremely
circumscribed privacy ... Objectification is an injury right at the heart
of discrimination: those who can be used as if they are not fully human are
no longer fully human in social terms; their humanity is hurt by being
diminished.
(Dworkin, 1985, p. 15)

4. This critique of law builds upon the feminist idea of a continuum in which
pornography both becomes a metaphor for a series of cultural and political
practices determined by the same logic of misrepresentation and subordina-
tion of women's being and naturalises those practices by eroticising inequal-
ity (cf. MacKinnon, 1987, p. 171-4). For a discussion of problems involved
in treating pornography as a metaphor for sex discrimination in general, see
Lesley Stern (1982).
5. For a historical discussion of sex discrimination and the Fourteenth Amend-
ment, see Morais (1988). On the expansion of interest in the United States in
articulating ethical objectives on issues of sexuality and sexual politics to
governmental· administration of civil rights and liberties, see Kim Ezra
Shienbaum (ed.) (1988).
6. Broadly speaking, we can identify two lines of argument in jurisprudential
responses to the Ordinance and Hudnut. MacKinnon's negative view of the
category of 'speech' in obscenity regulation and her belief that the Hudnut
decision reveals the sexist bias of the law is shared by several other writers.
For example, Penelope Seator argues that in Hudnut the courts fail to recog-
nise the reality of pornography as sex discrimination, reinforcing harmful
conducts under the guise of defending a right of free expression equally
available to all. The social reality of discrimination is thus reduced to a mere
idea which, according to the 'liberal, idealistic philosophy reflected in the
decision' is sacrosanct under the First Amendment (1987, p. 352). The
decision shows that the 'first amendment is a tool of male hegemony'
(p. 352). The courts' maintenance of a distinction between obscenity and
pornography is seen as a political refusal to recognise women's experience
and civil rights. A status quo is thus said to be preserved in which legislation
made from the male point of view is not seen as from a point of view; it is
only legislation written from the point of view of those injured by pornogra-
phy rather than those gaining profit, pleasure and power from it that is found
to be viewpoint discrimination (p. 354).
 Notes 263
In other responses, 'speech' in the context of pornography is not treated as
a fundamentally ideological category. Some writers, acknowledging that
pornography is problematic or harmful, maintain to a greater or lesser degree
a negative conception of free speech as a given right of the individual, such
that the Ordinance poses for them a risk of 'censorship' leading onto the
slippery slope of loss of fundamental liberties (cf. James Branit, 1986) or,
indeed, plays into the hands of a reactionary, antifeminist moral crusade
against pornography (Lisa Duggan, 1988). Numerous liberal and feminist
writers, while treating the attempt to translate the generalised idea of porno-
graphic 'subordination' of women into law with a degree of scepticism,
identify 'speech' positively with processes of educational change (cf. Winifred
Sendler, 1985; Geoffrey Stone, 1986).
7. The Court also considers Fifth Amendment due process requirements includ-
ing overbreadth, prior restraint and vagueness which affects the scienter
requirement (pp. 1337-41).
8. Of course, the spirit of the Ordinance is to seek not paternalistic protection
but redress against sex discrimination. However, the problem encountered in
extending the principle of protecting minors to control harms flowing more
generally from pornography's subordination of women indicates that the
form of governmental 'protection' first associated with medical-moral norms
(according to which, as we have seen, women were indeed linked with
children as vulnerable subjects) has given way to more sophisticated and
differentiated calculations concerning parties affected by pornography. The
problems posed by an aesthetic commitment to a universal and undifferentiated
subject arise in relation to a lower-level set of discriminations- by gender,
age, social situation, level of education and so on- which for some purposes
women might want to make.
9. To cite the Court of Appeals (771 F. 2d, pp. 329-30), pornography's harms
demonstrate pornography's power as speech. In other words, the subordina-
tion and discrimination it creates and maintains depend on particular tech-
nologies of media sex, and if the constructions of male sexuality which these
involve are to be changed, then this requires forms of intellectual and ethical
mediation which, while they may be aligned with the law, are not reducible
to it.
10. From this point of view, feminism is clearly the major force contending to
redefine the norms operating in what the Court of Appeals refers to as the
'socializing' effects of pornography. We have already seen that the agnosti-
cism professed in the Lockhart Report in support of deregulation does not cut
much ice in more recent governmental calculations (cf. the Hudson Report,
pp. 299-351). On the shift with regard to harms, see also the Report of the
Special Committee on Pornography and Prostitution: Pornography and Pros-
titution in Canada, Summary (1985, pp. 11-13, 45-56) and the recent New
Zealand Report of the Ministerial Committee of Inquiry into Pornography
(1989, pp. 38-47).
11. In Pornography and Sexual Violence (pp. 77-9) appears the testimony of a
woman employed as a plumber who objected to the display of pornography
at her workplace and whose attempts - supported by affirmative rights
officers- to have it removed, drew retaliations such that she sought a transfer.
Administrative measures to prevent or resolve such situations are inscribed in
264 Notes
that part of the Ordinance which makes it actionable to force pornography on
a person in employment, education, the home or public places. For such a
right to be fully effective it needs to be linked to other economic and civil
guarantees of employment, equity, participation and the like. Jeffrey Minson
has brought to our attention the promulgation of public service regulations in
Australia which include the display of offensive sexual materials in the
workplace among those activities which constitute harassment, mentioning
for instance 'provocative posters with a sexual connotation. Even works of art
may be inappropriate on occasions' (Public Service Board, Australia, 1986,
p. 3). It is suggested by William Brigman (1985, p. 501) that the 'forcing' of
pornography in the work environment might be treated as a form of sexual
harassment and hence as a violation of the United States Civil Rights Act of
1964. Similarly, the sensitisation which has occurred in governmental con-
texts to problems of prejudicial stereotyping of women, such that it is possi-
ble to register and refer to law certain of its discriminatory effects, is arguably
related in some measure to campaigns criticising media and other
objectification and subordination of women. This is reflected in recent legal
decisions such as that made by the United States Supreme Court requiring
Price Waterhouse to appoint a women employee to full partnership with back
pay because its promotions review system had permitted 'negatively sexually
stereotyped comments to influence partnership selection' The Weekend Aus-
tralian, November 10-ll, 1990, p. 45). We may also note here complex
issues surrounding the interests and rights of those harmed in the production
of pornography, one of the areas of 'forcing' with which the Ordinance is
concerned. The Hudson Report (pp. 595-735) deals with preventions, penal-
ties and remedies specifically in relation to the production of child pornogra-
phy, including child abuse in this production, and the problem of welfare
assistance for runaway or homeless young people.
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Seabury, Florence (1925) 'Stereotypes' in Kirchwey, F., (ed.) (1925), pp. 219-31.
Seator, Penelope (1987) 'Judicial indifference to pornography's harm: American
Booksellers v. Hudnut (Women's Law Forum)', Golden Gate University Law
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Table of Cases
AUSTRALIA

Transport Publishing Co. v. Literature Board of Review (1956)

99 C. L. R. III

UNITED KINGDOM

R. v. Curl (1727) 93 E. R. 849

R. v. Delaval (1763) 3 Burr. 1438
Director of Public Prosecutions v. Whyte
[1972] A. C. 849; [1972] 3 All E. R. 12; [1972] 3 W. L. R. 410
R v. Hicklin (1868) L. R. 3Q. B. 360
R v. Moxon (1841) 4 St. Tr. (N. S.) 693
R v. Penguin Books Ltd. [1961] Crim. L. R. 176
R v. Read (1708) 11 Mod. Rep. 142
R v. Sedley (1663) 1 Sid. 168
R v. Thomson (1900) 64 J. P. 456

UNITED STATES

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney

General of Massachusetts,
383 US 413; 16 LEd 2d I (1966)
American Booksellers Association v. Hudnut
598 F. Supp. 1316 (1984)
771 F. 2d 323 (1985)
106 S Ct 1772 (1986)
reh. den. 106 S Ct 1664 (1986)
American Booksellers Association Inc v. Rendell
481 A. 2d 919 (Pa. Super. 1984)
Arcara v. Cloud Books, Inc
478 US 697; 92 LEd 2d 568 (1986)
Besig v. United States
208 F. 2d 142 (1953)
Brown v. Pornography Commission of Lower Southhampton Township
620 F. Supp. 1199 (D. C. Pa. 1985)
Carlin Communications, Inc v. Federal Communication Commission
749 F. 2d 113 (1984)
Chaplinsky v. New Hampshire
315 US 568 1942); 86 LEd 1031 (1942)

275
276 Table of Cases
Cologne v. Westfarms Associates
469 A. 2d 1201 (Conn. 1984)
Commonwealth v. Dane Entertainment Services, Inc (No. I)
452 N. E. 2d 1126 (Mass. 1983)
Commonwealth v. Stock
499 A. 2d 308 (Pa. Super. 1985)
Federal Communication Commission v. Pacifica Foundation
98 S Ct 3026 (1978)
Frowherk v. United States
249 US 204; 63 LEd 561 (1919)
Ginsberg v. State New York
390 US 629; 20 LEd 2d 195 (1968)
Ginzburg v. United States
383 US 463; 16 LEd 2d 31 (1966)
Gitlow v. New York
268 US 652; 69 LEd 1138 (1925)
Grove Press v. Christenberry
175 F Supp. 488 (1959)
Jacobellis v. Ohio
378 US 184; 12 LEd 2d 793 (1964)
Jenkins v. Georgia
418 US 153; 41 LEd 2d 642 (1974)
Macon v. State
471 A. 2d 1090 (Md. App. 1984)
Memoirs v. Massachusetts (1966). See A Book Named "John Cleland's Memoirs of
a Woman of Pleasure" v. Attorney General of Massachusetts.
Miller v. California
413 us 15; 37 Ed 419 (1973)
Mishkin v. State of New York
383 US 502; 16 LEd 2d 56 (1966)
M.S. News Co v. Casado
721 F. 2d 1281 (1983)
New York v. Ferber
458 US 747; 73 LEd 2d 1113 (1982)
Paris Adult Theatre I v. Slaton
413 US 49; 37 LEd 2d 446 (1973)
Pack v. City of Cleveland
438 N. E. 2d 434 (Ohio 1982)
People v. Lerch
480 N. E. 2d 1253 (ill. App. I Dist. 1985)
People v. Wiseman
341 N. W. 2d 494 (Mich. App 1983)
Pittsburgh Press Company v. The Pittsburgh Commission on Human Relations
413 US 376; 37 LEd 2d 669 (1975)
Ross v. State
475 A. 2d 481 (Md. App. 1984)
Roth v. United States
354 US 476; I LEd 2d 1498 (1957)
Saliba v. State
475 N. E. 2d 1181 (fud. App. 2 Dist. 1985)
 Table of Cases 277
Smith v. California
361 US 147; 4 LEd 2d 205 (1959)
Stanley v. Georgia
394 US 557; 22L Ed 2d 542 (1969)
Star Satellite, Inc v. City of Biloxi
779 F. 2d 1074 (1986)
State v. Furuyama
637 P. 2d 1095 (Hawaii, 1981)
State v. Summers
692 S. W. 2d 439 (Tenn. Cr. App. 1985)
Staten v. State
686 S. W. 2d 268 (Tex. App. 14 Dist. 1985)
Swann v. State
637 P. 2d 888 (Okl. Cr. 1981)
United States v. Orito
413 US 139; 37 LEd 2d 513 (1973)
United States v. Petrillo
332 US 1; 91 LEd 1877 (1946)
United States v. 37 Photographs
402 US 363; 28 LEd 2d 822 (1971)
United States v. Reidel
402 US 351; 28 LEd 2d 813 (1971)
United States v. Roth
237 F. 2d 796 (1956)
United States v. Smith
467 F. 2d 1126 (1972)
United States v. One Book Entitled Ulysses by James Joyce
72 F. 2d 705 (1934)
Upper Midwest Booksellers Association v. City of Minneapolis
780 F. 2d 1389 (8th Cir. 1985)
Young v. American Mini Theatres, Inc.
427 US 50; 96 S Ct 2440; 49 LEd 2d 310 (1976)
Table of Statutes
AUSTRALIA

Objectionable Literature Act (Queensland) 1954

UNITED KINGDOM

Customs Consolidation Act 1876

Indecent Advertisements Act 1889
Libel Act (Lord Campbell's Act) 1843
Metropolitan Police Act 1839
Obscene Publications Act 1857
Obscene Publications Act 1959
Post Office Act 1870
Post Office (Protection Act) 1875
Theatres Act 1843
Town Police Causes Act 1847
Vagrancy Publications Act 1824; 1838

UNITED STATES

Civil Rights Act (1964)

Tariff Act (1930)
U. S. C. A (Constitution of the United States Annotated,
St Paul's, Minnesota: West Publishing Co.):
Amendment 1 )
Amendment 4 1987 d.f
Amendment 5 e 1 ton
Amendment 14

18 U. S. C. A. Section 1461 }
18 U. S. C. A. Section 1462
18 U. S. C. A. Section 14(i3 1984 edition and cumulative pocket (annual)
18 U. S. C. A. Section 1464
18 U. S. C. A. Section 1465

19 U.S. C. A. Section 1305} 1980 edition and cumulative pocket (annual)

39 U. S. C. A. Section 3006
39 u. s. C. A. Section 3010 1980 edition and cumulative pocket (annual)

278
 Table of Statutes 279
47 U. S. C. A. Section 503(b) ) 1962 edition including 1990 supplementary
47 U.S. C. A. Section 510 pamphlet covering 1963 to 1989
Reports and Parliamentary
Debates
CANADA

Report of the Special Committee on Pornography and Prostitution: Summary (1985)

Pornography and Prostitution in Canada (Ottawa: Department of Justice/Canadian
Government Printing Centre). Committee chaired by Paul Fraser.

LEAGUE OF NATIONS

Assembly documents: report of the Child Welfare Committee, A. 8. 1928, IV, pp. 6,
I 0-11, (Geneva: Series of League of Nations Publications IV)

Report of the Traffic in Women and Children Committee, C. 184, M. 59. 1928. IV.,
pp. 43-5 (Geneva: Series of League of Nations Publications IV).

NEW ZEALAND

Report of the Ministerial Committee of Inquiry into Pornography (1989) (Welling-

ton: Department of Justice). Committee chaired by Joanne Morris.

UNITED KINGDOM

Report from the Joint Select Committee on Lotteries and Indecent Advertisements
(British Parliamentary Reports from Committees: Vol. IX, 1908).

Report of the Committee on Homosexual Offences and Prostitution (1957) Cmnd

247 (London: Her Majesty's Stationery Office). Committee chaired by Sir John
Wolfenden.

Report of the Committee on Obscenity and Film Censorship (1979) Cmnd 7772
(London: Her Majesty's Stationery Office). Committee chaired by Bernard Williams.

146 Hansard Series of Parliamentary Debates (England, 1857).

280
 Reports and Parlimentary Debates 281

UNITED STATES

Report of the Commission on Obscenity and Pornography (1970) (New York:

Bantam Books). Committee chaired by William B. Lockhart.

Attorney General's Commission on Pornography and Obscenity Final Report,

Volumes 1 and 2 (1986) (Washington D. C.: United States Department of Justice).
Committee chaired by Henry E. Hudson.

Pornography and Sexual Violence: Evidence of the Links (1988). (The transcript of
public hearings on Ordinances to Add Pornography as Discrimination Against
Women: Minneapolis City Council, Government Operations Committee, December
12-13, 1983) (London: Everywoman Ltd).
Index
Acton, W., Functions and Disorders of typologies of, 17, 92-4, 99-101, 167-
the Reproductive Organs, 103-4, 71, 178, 194-5
121, 252n see also variable obscenity
aesthetics, 21-5, 139 auto-eroticism, xi, 39-42, 96, 204, 222,
as ethical practice, 16-17, 105-10, 243,253n
118-34, 183-4, 190-2, 234-6 see also masturbation
legal incorporation of, 14-15, 139,
141, 143-4, 149, 152, 158-9, Baisch, D., 126
164, 167, 176-80,210-14 Balzac, H., 75
limits of, 82, 100, 101-2, 176-80,234 Barrin, J., Venus dans le cloftre (Venus
and psychoanalysis, 106-7, 114-15, in the Cloister; or, the Nun in her
115-18, 122 Smock), 34, 49, 50, 52, 87-8
and psychology, 24-5, 35-6 Beal, A., D.H. Lawrence, 126, 253n
allegorisation, 155-7 Bedborough, G., 250n
American Booksellers Association v. Besant, A., 250n
Hudnut, 208-9, 232-46, 262n Besig v. United States, 258n
see also Indianapolis Ordinance bibliophiles, 136, 254n
American Booksellers Association, Inc. Blackwell, E., Counsel to Parents, 12,
v. Rendell, 220 15, 19, 72, 77; The Human Element
American Law Institute (Model Penal in Sex 123, 125, 136, 252n
Code), 26 body and flesh, 32-5, 36, 247n
Arcara v. Cloud Book, Inc., 221 Book Named 'John Cleland's Memoirs
Archbold, J.F., Pleading and Evidence of a Woman of Pleasure' v. Attor-
in Criminal Cases, 73 ney General of the Commonwealth
Archer, P. 249n of Massachusetts, 210
Aretino, 34 book sex (biblio-erotics), xi, 35-48, 92,
Arnold, M., 105 104-15,118,137-8,186,195,222,
art and pornography, 8-10, 18, 36-9, 246
42,59,80,92-3,94-5,96-7,109- book-trade,50,63,64,65, 77,80,86-7,
10, 138, 141, 151, 164, 176-80, 88, 92-4, 100-1, 135, 137, 154,
185, 190-1, 195, 212, 213 157-8,187,217-18
Ashbee, H.S., 254n Bourdieu, P., Distinction: a Social Cri-
Attorney General's Commission on Por- tique of the Judgement of Taste,
nography and Obscenity Final Re- 128
port (Hudson Report), 219, 225-8, Boyd, E., 120-1, 25ln, 252n
246,258n,259n,260n,264n Bradlaugh, C., 250n
audiences, 41,50-1,84,88-9, 119, 126- Bradley, F.H., 179
8, 128-9, 138, 141, 146-7, 190-1 Branit, J., 263n
cultural levels of, 10, 16, 42, 80-1, Brigman, W., 264n
93-4, 100, 135-7, 157-8, 213- Brown, B., 176
14, 220-1, 239-40 Brown v. Pornography Commission of
gendero~ 195,197,222,225-7,243 Lower Southampton Township,
problem of, 27-8, 93-4, 99-100, 177- 259n
80, 214-15 Burroughs, W., 55, 192, 193, 194

282
 Index 283
Calder, J., 157 Criterion Miscellany, The, 97-102
Carlin Communications, Inc. v. Federal cultural history, x, 3, 6-8, 42-8, 97-9,
Communications Commission, 258n 132-4
Carpenter, E., 105-15, 192; Angel's Curll, E., 49, 143, 188
Wings, 25ln; The Intermediate Sex, Customs Consolidation Act 1876, 74
108; Love's Coming of Age, 107;
Towards Democracy, 109 Davy, K., 244
censorship Day-Lewis, C., 153
historians of, 48, 57-8, 59, 85, 86, decriminalisation, 158-9
90-1,97-8,99-102,214,257n Defoe, D., Robinson Crusoe, 38-9
inadequacy of the concept, 48-56, 58, DeGrazia, E., 247n
73, 76, 86, 160, 243 DeGrazia, E. and Newman, R.K., 257n,
Chaplinsky v. New Hampshire, 239, 257n 259n
Chevasse, P.H., 104, 252n Delaney, P., 252a
Chidley, W., Confessions, 1, 7, 46 Delavenay, E., D.H. Lawrence and
Chorier, N., Satyra sotadique, 34, 49 Edward Carpenter, 105, 108
civic societies, 49, 53, 77-8, 80, 82, 84- desire and norm, 6-7, 20-5, 140
5,249n dialectics, xi
classics, treatment of, 61-2, 70, 75, 80- and aesthetics, 21-5, 182-4
1, 137, 150, 255n and cultural history, 7-8, 42-3, 47,
Cleland, J., Fanny Hill, 38-9, 46 97-9, 105--6
coercion, 88-9, 90, 164-5, 172-5, 200, as an ethical practice, 16-1 7, 121-5,
202-3 129-34, 137, 182-4, 234-5
Collins, W., 93 and psychology, 20-1
Colquhoun, P., Treatise on the Police of and reconciliation, 43, 49
the Metropolis, 59 and repression, 20-5
Commonwealth v. Dane Entertainment sexualisation of, 22-4, 97-9, 105-15,
Services, Inc. (no. 1 ), 216 117-18, 121-9, 190-2, 251-2n,
Commonwealth v. Stock, 217, 221 253-4n
competences Dickens, C., 93-4, 117, 135
cultural, 40, 89, 90, 185, 237 discrimination, 233-4, 238, 245, 262n
ethical, 96, 109-15, 119, 124, 198, see also rights
224-8 disinterestedness, viii, 71
literary, 39-40, 50, 96, 109-15, 137 distribution, 7, 18-19, 34, 40, 42, 51-2,
uneven distribution of, 9-10, 18-19, 56,64,72,73,88-9,92-4,99-100,
27-8,40,42,56,64,72-3,80-1, 101, 126-9, 134, 135-8, 140, 150,
88,92-4,97,135,137-8,156-7, 159, 185, 212, 216, 217-18, 220,
160-1, 177-80, 185, 198, 204- 223-4,227,240
5, 206-7, 239-40, 250-1n Donzelot, J., The Policing of Families,
confession, ix-x, 30-3, 36;-7, 43-5, 65, 18, 258n
66, 67, 88, 95--6, 103-5, 110-15, Draper, R.P., 127, 253n
188-9,204,243 drives, 33-4
Confessional Unmasked, The, 37,66-73 in aesthetics, 21-2
contingency, viii, 4, 7, 18-19, 102, 117- in psychology, 20-1
18,124,135,224,243,246 see also dialectics
Cousins, M., 206 Duggan, L., 263n
Cowan, James, 253n Durrell, L., 127
Cowan, John, The Science of a New Life, Dworkin, A., 231-46, 262n; Pornogra-
104, 119-21, 122, 123, 125, 136, phy: Men Possessing Women, x, 47,
252n 166
284 Index
education Foucault, M., ix, 29-33, 36--7, 43-5,
aesthetic, 21-3, 128-34, 183--4, 192 261n; The History of Sexuality, Vol.
and government, 128, 133--4, 168-71, I, An Introduction, 29-33, 43-5,
204-5 85-6, 102-3, 111, 128, 188, 228;
legal reliance on, 179-80,211-13 The History of Sexuality, Vol. 2,
popular, 128-9, 192-3 The Use of Pleasure, 118-19, 124
see also novels Fowler, O.S., 121
Eisenstein, E., The Printing Press as an Freud, S., On Sexuality, 114-15
Agent of Change, 40 Frohwerk v. United States, 199
Ellis, H., 47, 97, 123, 125, 192, 250n, Fuchs, E., 244
253n; Little Essays of Love and
Virtue, 122, 252n; Man and Woman, Galsworthy, J., 127, 128
108; The Objects ofMarriage, 121- Gay, P., The Bourgeois Experience: Vic-
2; Studies in Sexual Psychology, 47 toria to Freud, 3, 6, 25, 39, 58, 119
Eliot, T.S., 127 Ginsberg v. State of New York, 214
ethics Ginzburg v. United States, 195-6, 219
as an ability, 38, 118-26, 176--80 Gitlow v. New York, 199
and aesthetics, 105-8, 183--4 Goldsmid, J.A., Companionate Mar-
and education, 128-34 riage, 125
Foucault on, 118-19, 126 government, xi, 7, 50-2, 58, 59, 64-5,
and self-regulation, 16--17, 176-80 82, 87,128,187-90,229
techniques, 40-2, 184 and education, 128-34, 168-71, 193
see also competences; confession; and liberalism, 171, 230-1
Puritanism and norms, 44, 50, 75, 86, 134, 170,
evidence 205-6, 220-1, 226, 228, 234,
expert, 14-15, 139--41, 147-8, 150- 240,243,258n
6,254-5n,256n and police, 59-60, 64-6, 90
sociological, 147, 225-8 and population, 7, 12, 18, 44, 52--4,
see also trials 170
Grosskurth, P., 253n
FCC v. Pacifica Foundation, 239 Grove Press, Inc. v. Christenberry, 211-
Feinberg, J., The Moral Limits of the 12, 213
Criminal Law, vol. 1: Harm toOth-
ers, 173--4, 175, 178, 180-1 Haiman, F.S., 200
feminism, x, 100, 125-6, 160 Hall, R., 254n
as aesthetic critique, 234-6, 245-6 Haller, J.S. and Haller, R.M., 252n
ambivalence of, 231, 233-6, 244-6 harm condition, 162, 165, 172-6, 185,
and law reform, 9-10, 197, 231-7, 198,200,202,205
263n and offensiveness, 59, 65, 71-2, 73,
and liberalism, 17-18, 197, 230, 233, 140, 160, 163--4, 172-6, 193--4
242-3 Heath, S., The Sexual Fix, 58, 115-18,
and pornography, xi-xii, 5, 15-18,42, 251-2n
149, 184,231-3,261-2n,262n Herbert, A., 142
see also objectification Hirst, P., 206
Fleishman, S., 257n Hirst, P. and Woolley, P., Social Rela-
Forster, E.M., 92, 94, 97, 127 tions and Human Attributes, 125
Foxon, D., Libertine Literature in Eng- Hite, S., 47
land I660-1745, 34, 248n Hixson, R.F., 260n
 Index 285
Hoggart, R., 154 71-3, 93, 134, 144-5, 159,
Hunter, I., Culture and Government, 168-9, 171, 188, 195, 207-8,
128-9 209,210-13,223,243
Hunter, J.P., 247n and literature, 24, 54-5, 57, 61-2, 81,
Huxley, A., 127 92-102
and medicine, 188-90
indecency, 74, 78, 79, 80 and morality, 8-10, 18, 28, 42, 50-1,
Indecent Advertisements Act 1889, 74, 64,159,172-86,194,230-1
248n and norm, 44, 91, 138-9, 141, 142,
Indianapolis Ordinance, 261n 148, 158-60
see also American Booksellers Asso- and policing, 51, 59, 60-1, 63, 72-4,
ciation v. Hudnut; Dworkin, A.; 75, 135, 138-41, 144, 189-90,
MacKinnon, C. 208-9, 215-19, 221-2, 225-8,
intention, 67, 69-70, 132, 149, 155-6, 236,240,243-5,255n
212,217-18,260n as processual, 10, 209, 229-30, 237-
42
Jackson, M., 252n and psychology, 20-1
Jacobellis v. Ohio, 210, 218, 260n as repressive, 20-5, 48-56, 57-8,
Jeffreys, S., 252n 73, 76, 86, 87, 89, 91, 99-102,
Jenkins v. Georgia, 258n 161
Joyce, J., 94, 193 andselfregulation, 16-17,100-1,138,
Joynson Hicks, Sir W. (Viscount 139, 143, 159, 179-80, 205-8,
Brentford), 99-101, 250-ln 209,211,215-16,224,228,242,
juridification,9, 19,49-52,73,87,187, 243-5
248n see also obscenity law
jurisprudence, 3, 8-10, 25-8, 48-9, 75, Lawrence, D.H., viii, 21, 22-3, 48, 55,
87,137,155,162-4,171,198-205, 76,94-5,97-9,117,119,124,125-
220,230-1,235-6,258n,262-3n 7, 133-4, 140, 151, 154-5, 159,
171, 178, 184, 192, 193, 194, 195,
Kappeler, S., 166, 237 25ln, 252n; Fantasia of the Un-
Kaufmann, U.M., 247n
conscious, 107; Lady Chatterley's
Kinsey, A., 47
Lover, 95, 110, 112-15, 123, 124,
Kittsteiner, H.-D., 256n 131-3, 137, 152, 153, 154, 211-
knowledge
12; Pansies, 140; The Rainbow, 95,
and interests, viii
101, 111, 139-40, 154; Sons and
and pleasure, 30, 44-8, 109, 113-15,
Lovers, 111, 129-31, 154; Women
121-4,195-7,198,204,244
in Love, 111-12, 154; 'A propos of
the will to, 30-1, 102-4
Lady Chatterley's Lover', 212;
Knowlton, C., 250n 'Pornography and obscenity', 23,
Kopold, S., 125
48, 212; artworks, 140-1, 142
Koselleck, R., 231, 261n
and Carpenter, E., 105-15
Krafft-Ebing, R., 47, 196, 197
Lawrence, F., 127
Kronhausen, E. and P., Pornography and
League of Nations, 250n
the Law, x, 20-1, 178
Leavis, F.R., 131-2, 253-4n
law Leland, C., 108
and aesthetics, 14, 21-5, 48, 234-6 Libel Act 1843, 73
and education, 179-80, 185,203-4 liberalism
and the 'infra-legal', 51, 53-4, 58, and aesthetics, 21-5, 176-80
286 Index

liberalism - continued see also summary procedures

and feminism, 17-18, 162, 166, 197, Manchester, C., 62, 77, 249n
230,233,242-3 Marcus, S., The Other Victorians, x, 25,
govenrnnental, 171,198,207-8,215- 46,57,58, 119,247n,254n
16,228,256n masturbation
andjurisprudence,25-8 as metaphor, 24, 98
and law reform, 13-19, 172-3, 185- as social problem, 45-6, 103-4, 120-
6,194,202-4 1, 227
limits of, 15-19, 172-86, 194, 198, Mauss, M., 124
204-5,207,214-15,224 Memoirs v. Massachusetts, 258n
philosophical, 9, 160-1, 162-4, 171- mens rea, see intention
2,194,196,198-205,215,222, Metropolitan Police Act 1839, 73, 77,
228,230-1,256n 78
and privacy, 8-10, 165, 176-80,222- Mill, J.S., 162, 165, 181
4 Miller, H., 21, 55, 127-8, 192, 193, 194
and psychology, 20-1 Miller v. California, 201,213,214,215,
and representation, 164-5, 180-5, 198, 227,239
215, 228 Millot, M. and L' Ange, J., L' Ecole des
and rights, 179-80, 198-205, 207-8 filles (The School ofVenus), 3, 5, 6,
see also harm condition 8,33,34-5,37,39,40-1,49
libraries, 84 Mishkin v. New York, 195-7, 218
Lindsey, B.B., 125 Montano, L., 244
literacy, 88-9, 101, 118 Morais, N., 262n
literary criticism, x, 21-5, 115, 129-33, moralism, 59, 62-3, 64, 65, 71, 73, 76,
146,151-6, 169,253n 86,91,97,98, 163-4,167-8,193
legal recognition of, 14-15, 147, 153, morality and law, 8-10, 18, 28, 42, 50-
190-5,212 1,159,172-3,194,198-9,209-10,
see also aesthetics; Romanticism 215
literature see also ethics; self
and education, 128-34, 135, 253n Morpurgo, J., 149, 152, 153, 256n
historicisationof, 36-9,76,92-6,101- M.S. News Co. v. Casado, 215
2, 117-18, 118-21 Murry, J.M., 127
andlaw,24,54-5,57,61-2, 75,92- Muir, E., 127
102,210-12
and sexology, 47, 121-6, 253n
sexualisation of, 31-5, 76, 91, 102- Nabokov, V., 192
15, 117-18, 121-6, 135, 137, Nagel, E., 175-6
149, 190-2 National Vigilance Association, 77, 80
Lockhart, W.B. and McClure, R.C., 14, New Criticism, 146
16, 19, 26, 27, 174, 177-80, 194, New York v. Ferber, 215, 239
202 newspapers, 84
lotteries, 53, 78, 82, 85, 249n Nin, A., 127
norms, 5
MacKinnon, C., 231-46; Feminism Un- and desire, 6-7, 16, 20-5, 140
modified, 233, 235-7, 240, 242, andlaw44,60, 72-3,85-6,90,138-
262n 9,141,144-5,148,205-6,209-
Macon v. State, 259n 10,213,215,220-4
magistrates, 60-1, 63, 66-7, 74, 79, 81, novels, 92-5, 211-12
216,248n and Puritanism, 38-9, 247n
 Index 287
of sexual education, 23, 55, 109-15, 138,142-3,162-6,172-86,202-
149, 193 4
pedagogical use of, 54--5, 128-34, United States, 198-9, 208-11, 213-
136, 154, 193-5 15,216,231-2,237-41
Oestreich, G., Neostoicism and the Early
objectification, viii-ix, 10, 17, 166, 234, Modern State, 59
236,237,240,245,262n offensiveness, 163-4, 167, 173-5, 193-
see also aesthetics 4, 213, 215
Objectionable Literature Act 1954 (Q),
167 Pack v. City of Cleveland, 259n
obscene libel, 50, 52, 60, 74, 79~ 87, 89- Paris Adult Theatre 1 v. Slaton, 201,
90 217, 259n,260-1n
obscene publication, 60, 62, 66, 74, 78, Paul, J., 182
83-4,87,88-9,91,187 People v. Lerch, 260n
and copyright, 95, 248-9n People v. Wiseman, 214
Obscene Publications Act 1857, 52-3, perversions
57,59,60-2,63-5,74, 77,90,93, aestheticisation of, 110, 113-15, 137,
148 191-2
Obscene Publications Act 1959, 57, 66, 'implantation of', 44--5, 102-3, 114--
89, 100, 135, 138-9, 142-8, 149, 15
150-1, 153, 154, 155, 157, 158, pornography of, 46, 92, 192
159-60, 162, 163, 164, 171 Pepys,S., 1,5, 7,8,9,34--5,39,50
obscenity, 3-4, 97-101 Phillips, J., 248-9n
definitions of, 26, 68-9, 70, 81, 140, Pittsburgh Press Co. v. Pittsburgh
143,248n Commission on Human Relations,
liberal consensus on, 2-4, 8-9, 15- 257n
16,200-4 police, 66, 74, 83, 99-102, 159
and police, 73-4,208-9,216--17,225- defmition of, 59-60
6 and law, 63, 75, 79, 99-101, 208,
as social problem, 7, 49-54, 99, 170, 215-19, 225-6, 243-5
188-90,211 medical, 64, 71-3, 78, 92, 138, 143,
tests of, 14, 52-3, 57, 66, 73-4, 78-9, 168,210
141-5, 156, 210-11, 213-15, pedagogical, 168-71, 210, 213,
216--17, 239-40 243-4
see also variable obscenity pornography
obscenity law aesthetic account of, 21-5, 35-48, 55
aestheticisation of, 14, 100, 156,209- aestheticisation of, 109-15, 140,
13, 245 190-2
England: eighteenth century, 49-52, and art, 8-9,18,36--9,42,92-3,94--
86--90; nineteenth century, 52- 5, 96--7, 109-10, 164, 176--80,
4, 57, 59-76, 92-4; twentieth 185,190-2,195,244
century, 94--5, 97, 99-102, 135, as conduct, 5-6, 40, 180-5, 220-1,
138-9, 142-60 223-4,225-8,233,238,240
infrequency of prosecutions, 75-6,77, effects of, 15, 26--7, 225-8
101, 187-8, 250n and feminism, xi-xii, 5, 15-18, 166
policing of, 64, 189-90, 199, 208-9, general explanations of, viii-ix, 2-3,
215-19, 221, 224, 225-8, 230, 16, 101-2, 189, 234
259n as genre, 21,36--9, 109, 112-14
reform of, 8-10, 13-17,54-6,75,81, harms of, viii-ix, 4, 12-17, 45, 65-6,
288 Index

pornography, harms of- continued 97-8, 101, 115, 121-2, 127-8,

99-100, 172-6, 204, 210-11, 137,190-5,222-4
214-15,225-7,231-4,244 and reader response theory, 75, 76, 80
history of, x, 3, 6-8, 31-5, 42-8, 96, see also book-sex; competences
162,229,246 realism, 5-6, 20-1, 28, 41
and liberation, 3, 28, 30 Rembar, C., 57
medicalisation of, 1-2, 7, 12-16, 35, R. v. Curl/, 50-1, 52, 87-90, 187
45-8, 55, 60, 64-5, 72-3, 90, Reg.v.Read,50,87
102-5, 144 Reg. v. Hicklin, 26, 27, 37,52-3,57, 60,
and men, xi, 18, 34, 39, 42, 195, 197, 66-73, 75, 135, 146, 148-9, 157,
198,222,225-7,230,231-3,236 163, 165, 167, 170-1, 178, 189,
and pedagogy, 45 197,209,210,248n
'positivity' of, x-xi, 6, 28-35 Reg.v.Moxon, 70
and printing, 7, 9, 34, 40-1, 88-9, Reg. v. Penguin Books Ltd., 135, 139,
189 148-58,159, 160-1,255n
psychological account of, 20-1, 28- R. v. Sedley, 74, 87, 89
30 Reg.v.Thomson, 75,146-7
and religious practices, 5, 30-3, 36-9 Report from the Joint Select Committee
as representation, 5-6, 40, 164-6, 172, on Lotteries and Indecent Adver-
180-5,198,226-8 tisements /908, 78-86, 134, 139,
Pornography and Sexual Violence, 244, 216,249n,254n
261n,263-4n Report of the Commission on Obscenity
post-modernism, 86, 115-18, 244 and Pornography (Lockhart Re-
Post Office (Protection) Act 1884, 74 port) 202-5; 216, 217, 219, 223,
postal regulation, 77, 82-3, 84, 99, 100, 225,243,257n,258n,260n,263n
140,216,218-19,249n,254n Report ofthe Committee on Homosexual
printing, xi, 7, 9, 34,40-1,50-1,57,65, Offences and Prostitution
86-7,88-9,90,91,92-4,104,189 (Wolfenden Report) 1957, 164
privacy, 8-9,165,176-80,185,222-4, Report of the Committee on Obscenity
225,260n,260-1n and Film Censorship (Williams
Proclamation Society, 77 Report) 1979,56, 57,63,68, 143,
psychology, x, 20-1 158, 162, 163-5, 172-3, 174-5,
public good, 139, 141-2, 145, 147-8, 176-7,178, 181-2,249n
150,151, 160,210-11,213,255n Report of the Ministerial Committee of
Public Health Act 1875, 74 Inquiry into Pornography, 263n
Public Service Board, Australia, 264n Report of the Special Committee on Por-
Puritanism, 3, 34, 154 nography and Prostitution: Pornog-
misunderstandings of, 43, 49, 87, 89, raphy and Prostitution in Canada,
91,97-8,187 263n
and the sexual self, 8-9, 35, 38-9 representation, 116-18, 165,230,234-5
and liberalism, 164-5, 172, 180-5,
Queensland Literature Board of Review, 198,215,228
166 pornography as, 5-6,40, 164-6, 172,
180-5,198,226-8
Radclyffe Hall, R., The Well of Loneli- repression, 20-1, 28, 189-90, 194-5
ness, 145-6, 147, 193 fable of, ix, 29-30
Radzinowicz, L., 249n and confession, 30-2, 121-4, 128
reading in humanist historiography and poli-
as erotic practice, 1-2, 8-9, 40-1, 92, tics,3,30,42-8,98,203
 Index 289
see also 'repressive hypothesis' regulation, 16--17, 66, 128-9, 131-3,
'repressive hypothesis', 28-30, 43 206--8,222-4
Reynolds, R., 250n Sendler, W., 263n
Richards, D.A.J., 200--1, 214 sexology, 46--8, 102-8
rights and feminism, 125--6, 252n
civil, 58, 231-4, 236-41, 245, 264n and literature, 47, 121--6, 253n
conditionality of, 205, 206--7, 219- and pleasure/knowledge, 44--5, 47,
22,224--5 121-4, 195-7
of expression, 82, 198-210,215,217- sexual medicine, 12-15,46, 102-5, 110--
18, 219-22, 226--8, 233, 238- 14, 119-21, 136, 142, 252n
41,259n sexuality
and interests, 198, 205, 211, 220-4, aestheticisation of, 96--9, 101, 105-8,
240, 259n 137-8, 155--6, 190--2
of privacy, 176--80, 222-4, 225 apparatus of, 43-5
and the subject, 10, 198-9,220,222- as historical construction, 6, 30--3,43-
3,228 5, 57, 91, 102, 124, 134
Roberts, R.F., 253n and literature, 91, 96--9, 102, 108-9,
Robertson, G., 160--1; Obscenity, 57-8, 190--2
62,63,68, 76,90,94,143-4,145, and medicine, 102-5, 111, 119-21
146, 152, 158, 250n and pedagogy, 128-34, 192-4, 257-
Rolph, C.H., Books in the Dock, 58, 90, 8n
141, 254--5n; The Trial of Lady Shaw v. DPP., 255n
Chatterley: Regina v. Penguin Shienbaum, K.E., 262n
Books, 150,151,152,154,155,156, sin, 87-8, 91
157-8, 160,255--6n Slights, C., 247n
Romanticism, 96,105, 108-9, 146, 182- Smith, J.C. and Hogan, B., 155
6, 190 Smith v. California, 201, 217, 260n
see also aesthetics; dialectics social problems, 7, 49-54, 93-4, 170,
Ross v. State, 216 215-16, 225-7
Roth v. United States, 210--11,213,214, Sparrow, J., 115
215,227,247n spiritual courts, 50, 87, 249n
Rowbotham, S., 105, 252n St John-Stevas, N., 16, 24, 25, 48, 90,
Rushdie, S., 160 140--1, 146
Stanley v. Georgia, 222-3
Saliba v. State, 214 Star Satellite Inc. v. City of Biloxi, 259n
Saunders, D., 155, 247n Starr, G., 247n
Schiller, F., On the Aesthetic Education State v. Furuyama, 259--60n
of Man, 22, 183-4 State v. Summers, 214
Schorer, M., 253n Staten v. State, 214
scienter, 217-18, 260n, 263n Stephen, Sir James F., Digest of the
Scott-James, A., 152-3 Criminal Law, 70, 255n
Seabury, F., 125 Stern, L., 262n
sedition, 90, 91 Stone, G., 263n
self Swinburne, A., 110
formation, 8-9, 35, 39-40, 95--6, 102- subject (the), 10, 27-8, 32, 41, 76, 86,
5, 115, 183-4 90--1, 230
stylisation, 102, 105-8, 110, 118, 124-- and feminism, 184, 186
5, 126, 128, 133-4, 135, 137-8, and liberalism, 172--6, 186, 198-203,
145, 149, 153, 193, 235 205,215,228
290 Index

subject (the)- continued Upper Midwest Bookselters v. City of

and philosophy, 181 Minneapolis, 215, 260n
of pornography, 39--42
see also competences; self Vagrancy Acts 1824, 1838, 73, 78
sublimation, 20-1 Van de Velde, T., Sex Hostility in Mar-
see also dialectics riage, 122-4, 126; Ideal Marriage:
summary procedures, 53, 63, 74, 79,82, its Physiology and Technique, 124
100-1, 139,216-17,248n Van Ghent, D., The English Novel: Form
Swan v. State, 224 and Function, 129-31
variable obscenity, 10, 16, 27,72-3,75,
Theatres Act 1843, 73 80-1, 135, 139, 146-7, 157, 194,
Thomas, D., A Long Time Burning, 3, 5, 207, 210, 211, 213, 214-15, 221,
6,48,57-8,62,67,90,249n 224,225-7,230,237,239--40,244,
Town Police Causes Act 1847, 73-4, 255n,258n
78-9,248n and communications technologies,
Transport Publishing Co. v. The Litera- 219,243
ture Board of Review, 166-71 see also audiences; competences
trials Veyne, P., 95
and expert witnesses, 15; see also evi- Vice Society (Society for the Suppres-
dence, expert sion of Vice and the Encourage-
andjuries,74-5,79,82,85,139,147- ment of Religion and Virtue), 77,
8, 149, 151-2, 153, 157, 160-1 254n
procedures, 145-8,150,216,237-41 Vizetelly, H., 75, 250n
as ritual, 74-5, 148-9
see also individual cases Wagner, P., 34
Tribe, D., 68, 248n Warren, S.D. and Brandeis, L.D., 260n
Trilling, D., 253n Weekend Australian, 264n
Tsuzuki, C., 105 Weininger, 0., Sex and Character, 108
Twain, M., 21 West, A., D.H. Lawrence, 126
West, R., 155-6
United States Constitution, First Amend- Whitman, W., 192
ment, 14, 178, 199-203, 209-10, Wilberforce, W., 77
211,213-14,215,217,226-7,228, Williams, J. and Williams, R., Lawrence
238,240-1,249n on Education, 133-4
Fourteenth Amendment, 233, 238 Williams, R., 153, 154; The English
United States v. One Book Entitled Novel from Dickens to Lawrence,
Ulysses by James Joyce, 94, 258n 132-3
United States v. Orito, 223 Wilson, C., 24
United States v. Patrillo, 218 Witte, W., 183
United States v. Reidel, 261n
United States v. Smith, 218 Young v. American Mini Theatres, Inc.,
United States v. 37 Photographs, 261n 240
United States v. Roth, 162, 171, 212,
258n Zola, E., 75, 76, 250n