This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of the diverse positions in the philosophical debate on the relation between law and sexual morality.
This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of the diverse positions in the philosophical debate on the relation between law and sexual morality. The Penal Code of 1886 prohibited texts and pictures that were “offensive to public morality”, which phrase was only meant to prevent involuntary exposure to obscene pictures and to slander. This approach coincides with the liberal harm and offence principles. The revision of the law in 1911 was inspired by Christian perfectionism. “Offensive to public morality” was now taken to refer to the eternal Christian truth, forbidding all sexual manifestations that did not match monogamous marriage. Under the influence of the sexual revolution of the 1960s, the Dutch Supreme Court turned to a sociological reading of “offensive to public morality”: pornography was not allowed when a large majority found it offensive. In this approach, one may recognize the communitarian extension Devlin gave to the liberal harm principle: society may be harmed by actions that undermine its traditional values. However, Dutch majority opinion turned ever more liberal. In 1984 the lawgiver returned to the liberal approach of 1886, explicitly adopting the harm and offence principles as guidelines. Feminist critics argue that pornography causes harm to women by inciting rape and discrimination. The Dutch experience does not support this claim. Since the electronic revolution of the 1990s, pornography has been integrated into mainstream culture. Porn is widely available on-line, yet this has not corrupted Dutch youth. Enjoying much more freedom than previous generations, most Dutch youngsters are searching for a “lust balance”, a balance between a desire for sex and a longing for intimacy. In doing so, they develop a subtle self-discipline that enables them to engage in intimate relationships on an equal footing.