Article by Charlotte L. Bynum
This Article is a small part of a larger attempt to open American legal scholarship to hearing about and considering other countries' analyses and solutions to social problems, which are not confined within national borders, but which are international in scope. We are particularly parochial in our assumptions that other countries cannot contribute to our assessments of social problems, and we are ignorant of the contribution that others have already made to our ways of thinking about those problems. For example, as Nitya Duclos has noted in her Lessons of Difference: Feminist Theory on Cultural Diversity, Canadian legal scholars often use American citations with great familiarity, while American scholarship has rarely referred to Canadian sources. Similarly, New Zealand scholars often incorporate references to our first amendment and its jurisprudence in their analyses, while we seldom are aware of the New Zealand experience. As Duclos puts it,
moving out of the messy and familiar problems . . . in the United States into the problems faced by a country that shares similar ideals but in a different place with a different history . . . [may] give American readers a glimpse of the unfamiliar but recognizable, an opportunity to consider . . . [the problem] in a terrain where the positions do not seem so well-entrenched and the arguments so well-trodden.
By taking feminist antipornography views seriously in its report, New Zealand has another opportunity to serve as, in the words of Herbert Henry Asquith, Great Britain's liberal prime minister during the First World War, “‘a laboratory in which political and social experiments are every day made for the information and instruction of the older countries in the world.”’
New Zealand is the latest of the Western countries with common-law systems to issue an official report on pornography or obscenity. In 1987, Geoffrey Palmer, then Minister of Justice, appointed a committee to inquire into pornography and the law relating to it and to make recommendations. Published in January 1989 under the title Pornography: Report of the Ministerial Committee of Inquiry, the committee's report has not been reviewed in American legal literature, perhaps because it is difficult to obtain. It is of interest in the United States for several reasons, however. First, New Zealand has established a statutory scheme of administrative control over pornography, including prior censorship. This scheme is remarkably more comprehensive in coverage and severity of control than anything that exists in other Western democracies. Second, New Zealand is a country that, because of its size, general character, and geographical isolation, has been able to operate this scheme with greater efficiency than, for example, the United States or European countries. Hence, New Zealand is a country that is, at the moment, far less exposed to pornography than either the United States or most Western European countries, in which small distances, ease of communication, and variations in the level of control make all types of pornography readily available. Third, the New Zealand committee was able to make use of the work of earlier similar bodies in the United States, Canada, and the United Kingdom. In a sense, its report is both an evaluation of and departure from earlier reports. Fourth, it is the first report in the common-law world that has enthusiastically adopted the basic philosophy of the feminist approach to pornography developed in the United States and associated with the writings of Andrea Dworkin and Catharine MacKinnon. As we shall see, in so doing, it carries further a development in this area that had previously influenced the Canadian Fraser commission. As a result, it illustrates feminism's role in placing purportedly objective legal rules in a larger context and highlighting the symbolic function of the law. The report also underscores the international, rather than national, character of the phenomenon of incorporating changing social views into legal norms.
About the Author
Charlotte L. Bynum. Assistant Professor, Widener University School of Law.
Citation
65 Tul. L. Rev. 1131 (1991)