Washington University Jurisprudence Review Volume 5 | Issue 2 2013 Another Solipsism: Rae Langton on Sexual Fantasy Andrew M. Koppelman Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Jurisprudence Commons, Legal History Commons, Legal Theory Commons, and the Rule of Law Commons Recommended Citation Andrew M. Koppelman, Another Solipsism: Rae Langton on Sexual Fantasy, 5 Wash. U. Jur. Rev. 163 (2013). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol5/iss2/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Jurisprudence Review VOLUME 5 NUMBER 2 2013 ANOTHER SOLIPSISM: RAE LANGTON ON SEXUAL FANTASY ANDREW KOPPELMAN ABSTRACT The feminist critique of pornography focuses on the evils that pornography brings about. That critique is also animated by a positive ideal of sexuality. I examine this positive ideal as developed by Rae Langton, who has recently offered a sustained philosophical account of the feminist critique. Langton’s ideal is a fundamentally defective and self- defeating aspiration, likely to thwart rather than to facilitate the interpersonal communion she values. It paradoxically reproduces the solipsism it denounces. The defects of her ideal strengthen the case for other, more pornography-friendly forms of feminism. John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University. Thanks to Mary Anne Case, Anne Eaton, Mary Anne Franks, Josh Kleinfeld, Rae Langton, Martha Nussbaum, Valerie Quinn, Dorothy Roberts, Rachel Zuckert, the University of Chicago Regulation of Family, Sex, and Gender Workshop, the Northwestern University Philosophy Colloquium, and the Northwestern Law Faculty Workshop for helpful comments on earlier drafts, and to Marcia Lehr for research assistance. 163 Washington University Open Scholarship 164 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 5:163 TABLE OF CONTENTS INTRODUCTION ........................................................................................ 164 I. THE PATH INTO SOLIPSISM .................................................................. 166 A. The Feminism of Fear ............................................................. 166 B. A Fantasy of Rape ................................................................... 168 C. Beings That Are Not Necessarily Persons ............................... 171 II. THE PATH OUT OF SOLIPSISM............................................................. 175 A. The Uses of Fantasy ................................................................ 175 B. The Sources of Illocutionary Disablement .............................. 183 C. Ought Implies Can .................................................................. 186 INTRODUCTION The feminist critique of pornography, commonly offered as a justification for its restriction by the law, relies on pornography’s sexual objectification of women, eroticization of female submissiveness, and trivialization of women’s own needs and desires. That critique is also animated by a positive ideal of sexuality. This Article examines that positive ideal. Aspirations matter, and they matter for law when the coercive apparatus of the state is placed behind them. Obscenity is one area where the Supreme Court has made its aspirations explicit. When it announced the still-operative test for determining when obscenity is not protected by the First Amendment,1 the Court explained that a central reason for obscenity’s non-protection is that “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.”2 1. The present test for determining whether a publication is obscene, laid down in Miller v. California, 413 U.S. 15, 24 (1973), is (a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (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. Id. (citations omitted). 2. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973). Paris and Miller were decided on the same day. https://openscholarship.wustl.edu/law_jurisprudence/vol5/iss2/1 2013] RAE LANGTON ON SEXUAL FANTASY 165 Many scholars wonder what harm could possibly be caused by obscenity.3 Material can be obscene even if it has no likelihood of inciting anyone to unlawful conduct, and even if no unwilling viewer is ever likely to see and thereby be offended by it. Obscenity law aims to prevent the formation of certain thoughts—typically erotic ones—in the minds of willing viewers.4 The earliest and most influential definition of obscenity is the English case Regina v. Hicklin, which holds that a publication is obscene if it has a “tendency . to deprave and corrupt those whose minds are open to such immoral influences.”5 The modern Supreme Court follows this approach, with modifications.6 Obscenity doctrine aims to prevent moral harm.7 Harry Clor notes that “notions of what is harmful to human beings are ultimately linked to ideas of what is good for us,”8 and, on this basis, he persuasively argues that the question of pornography’s harmfulness depends on our understanding of what makes humans flourish. To harm someone is in some way to set back his interests. Ideas of harm are thus necessarily linked to aspirations: if I do something to you that obstructs your path to something that is worth having, then I have harmed you. The Paris Court ruled that obscenity can harm people by debasing and degrading “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.”9 The Court thinks its ideal of sexual relationships can be thwarted by free dissemination of obscenity. For that reason, it is willing to carve out an exception to normal free speech protection, so that the state can protect us with censorship. That aspiration is evidently more important than free speech. Unless the aspiration is understood, the law is incomprehensible. Perhaps that is why so many critics of the law have failed to comprehend it. The moral vision of Chief Justice Warren Burger is shared by a diminishing portion of the legal community. The language of Paris seems quaint now. But the idea that obscenity can harm us by impeding our path 3. See, e.g., RICHARD A. POSNER, SEX AND REASON 351–82 (1992); Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. REV. 391 (1963). 4. This was noted long ago by Louis Henkin, who however was entirely baffled by the notion of harm that concerned the Court. See Henkin, supra note 3. 5. L.R.-Q.B. 360, 371 (1868). 6. See JOEL FEINBERG, OFFENSE TO OTHERS 171–78 (1985). 7. I elaborate this argument in Andrew Koppelman, Does Obscenity Cause Moral Harm?, 105 COLUM. L. REV. 1635 (2005). 8. HARRY M. CLOR, PUBLIC MORALITY AND LIBERAL SOCIETY 115 (1996). 9. Paris Adult Theatre I, 413 U.S. at 63. Washington University Open Scholarship 166 WASHINGTON UNIVERSITY JURISPRUDENCE REVIEW [VOL. 5:163 toward an ideal of sexual reciprocity has lately been given a spirited new articulation in a feminist mode. Confrontation with the best philosophical case for the suppression of pornography is indispensable in order to decide whether the law today draws the line in an appropriate place. If that case is unsustainable, then so is the argument for the legal status quo. This is a situation in which philosophy has manifest practical entailments. Rae Langton, professor of philosophy at Massachusetts Institute of Technology, presents the most sophisticated, sustained philosophical account of the feminist critique of pornography.10 She is justly renowned for her brilliant and devastating critique of Ronald Dworkin’s work in this area. In this Article, I propose to examine her positive aspiration of sexuality. Langton’s ideal for obscenity law, I argue, is fundamentally defective and self-defeating, likely to thwart rather than to facilitate the interpersonal communion she values. It paradoxically reproduces the solipsism it denounces. The defects of her ideal strengthen the case for other, more pornography-friendly forms of feminism. I. THE PATH INTO SOLIPSISM A. The Feminism of Fear To eliminate the negative, you’ve got to accentuate the positive. Judith Shklar, in her well-known essay “The Liberalism of Fear,” argued that liberalism at its core is a negative rather than a positive ideal. Liberalism’s primary concern is tyrannical cruelty, and the fear that cruelty inspires. The rights that it demands are “just those licenses and empowerments that citizens must have in order to preserve their freedom and to protect themselves against abuse.”11 But even in Shklar’s account, the liberalism of fear is related to the liberalism of hope. “[T]he original and only defensible meaning of liberalism” is that “[e]very adult should be able to make as many effective decisions without fear or favor about as many aspects of her or his life as is compatible with the