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After building up his analytical tools—the two new models of victims’ rights, Kent starts to review the criminal cases since 1982. Only in this part of his book, I can find a little flaw with my captious eyes: he is too modest to show the normative force of his models, and is reluctant to give advice on the future development. However, his credible description on the defects and merits of the decided cases has given us a sense of direction.
III. The Social Construction of Sexuality and Its Impact on the Legal Definition of Obscenity
Feminists have been playing an increasingly important role in the formation of the public reason of our society. In the present context of debate, the feminists do not simply require the equality between men and women; they also want to add the female perspective and female body-knowledge into the process of adjudication. This kind of intellectual efforts is justifiable, even essential, because our moral tradition is largely masculine. Even most female participators of the public debate employ the masculine institutional knowledge without reflection. As Carol Gilligan has insightfully pointed out, the female and male human beings have different ways on looking at this world and different mental process for forming their moral self . Therefore, the public reason remains incomplete without the incorporation of female way of thinking.
However, when some feminists put forward their general propagandas, which aim to replace the traditional framework of justification totally, they have ideologized feminism. The conceptual distinction of public reason and comprehensive doctrine, as elaborated by Rawls, is helpful for us to differentiate between feminism as a distinct way of thinking and feminism as an ideology. The idea of public reason, as Rawls understand it, is composed of the overlapped consensus of different comprehensive doctrines, and lays the basis for political and judicial decision-making in such a society. On the contrary, “a comprehensive doctrine, either religious or secular, aspires to cover all of life. I mean, if it’s a religious doctrine, it talks about our relation to God and the universes; it has an ordering of all the virtues, not only political virtues but moral virtues as well, including the virtues of private life, and the rest.” To claim the supremacy of one comprehensive doctrine is contrary to the principles of democracy, because a basic feature of democracy is the fact of reasonable pluralism.
Kent has recognized a risk of ideological bias in a series of “political cases”. He told us:
As they were contested in Court, the media, and Parliament, the new political cases degenerated into divisive, symbolic and legalistic battles between defence lawyers and feminists. The justices of the Supreme Court seemed increasingly unwilling to fully appreciate the other side’s argument. In any event, judicial attempts to make pragmatic compromises were quickly dismissed, first in the media and then in Parliament. In such a polarized climate, the desire to understand the other side waned.
In Kent’s view, we should appreciate feminist for their contributions which have enriched our understanding on criminal law, including a new perspective on the social problems previously defined as “victimless crimes.” However, an ideologized feminism has blocked the democratic dialogue between different parties, hindered the efforts of judges to obtain a fully informed opinion, and criminalized politics.
Brenda Cossman’s analysis on R v. Butler shows us both the insightful and boring aspects of feminism. It is insightful when it carefully examines the power/knowledge structure behind this decision, but it is boring when it indiscriminately condemns the traditional tests employed by Mr. Justice Sopinka, without appreciating the merits embodying in this opinion. Moreover, the critic shares the vital lacuna of the criticized: the female side of understanding on the “due or undue exploitation of sex.”
In R v. Butler, the crucial issue is to find a definition for obscenity. To the common understanding of this society, obscenity is the undue exploitation of sex. To determine whether an exploitation of sex is undue, the court adopted the long-established tests of “community standard of tolerance” and “internal necessities”. In using these tests, the court failed to consider the female point of view. And the critic, while correctly pointing out that there is nothing new in these tests, also failed to suggest a proper way to incorporate female perspectives into them.
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