Disgust and the law

[undergroundpanther]

A fascinating commentary

There are many areas of law to which such ideas might lead us; let me focus on just one. Legal accounts of the obscene in the Anglo-American common-law tradition standardly refer to the disgusting properties of a questionable work as they relate to the sensibilities of a hypothetical "average man." The legal standard set by the U.S. Supreme Court in Miller v. California in 1973 holds that "a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value." That determination is to be made from the point of view of "the average person, applying contemporary community standards." Disgust enters the picture in two ways: as a means to articulate the notion of the "patently offensive," as well as to define "prurient interest" (something that is a "shameful or morbid interest in nudity, sex, or excretion").

In order to make those connections clearer, Justice Burger, writing for the majority, analyzed the concept of obscenity in a fascinating footnote. Criticizing an earlier decision for not offering a precise definition of the obscene, he first traced the etymology of the word "obscene" from the Latin caenum, "filth." Next he cited a current dictionary definition of "obscene" as "disgusting to the senses ... grossly repugnant to the generally accepted notions of what is appropriate ... offensive or revolting" and another dictionary definition of "obscene" as "offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."

That, however, was not the end of the matter. The note then added that the material being discussed in the Miller case was "more accurately defined as 'pornography' or 'pornographic material.'" In other words, the concept of the "obscene" underwent further refinement and analysis via the concept of the "pornographic." The etymology of "pornography," from the Greek term for "harlot," is then discussed, and pornography is defined (via a dictionary) as "a depiction ... of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

The mingling of ideas in that account is truly fascinating. In order to offer a "precise" definition of the notion of "prurient interest," the court brought in the concept of the disgusting; that concept, in turn, was rendered "more accurately" by reference to the concept of the female whore and the related idea of a "portrayal of erotic behavior designed to cause sexual excitement." In other words, that which appeals to prurient interest is that which disgusts, and that which disgusts is that which (by displaying female sexuality) causes sexual excitement. But aren't disgust and sexual arousal very different things?
http://lettrist.blogspot.com/2004_08_01_archive.html