Cynthia A. Stark

This paper argues that, with modification, Rawls's social contract theory can produce principles of distributive justice applying to the severely disabled. It is a response to critics who claim that Rawls's assumption that the parties in the original position represent fully cooperating citizens excludes the disabled from the social contract. I propose that this idealizing assumption should be dropped at the constitutional stage of the contract where the parties decide on a social minimum. Knowing that they might not be fully capable of social cooperation, the parties will choose a social minimum that is as high and comprehensive as is compatible with the difference principle. This will ensure that the disabled have an adequate income.

Catharine MacKinnon argues that pornography is action, rather than speech. She argues further that the speech/action distinction is what delineates the scope of the First Amendment. It follows, she thinks, that pornography does not fall within the scope of the First Amendment. I argue that the legal distinction between speech and action on which MacKinnon relies is unstable and therefore cannot determine which utterances fall within the scope of the First Amendment. Indeed, attempting to sort utterances by means of the speech/action distinction in order to make this determination can lead to a paradox, which I call the “viewpoint paradox”. That an utterance expresses a particular viewpoint is typically sufficient for its qualifying as speech; yet MacKinnon’s argument that pornography is not speech pivots are her claim that it is an act of subordination because it expresses a particular viewpoint about women.