Consideraciones sobre el concepto de pornografía y la regulación jurídica de expresión

Abstract

In order to situate the subject matter within its proper context, the author starts off this article from the situation of crisis which is being fought today, provoked by an accelerated process of change which threatens the entire system of values and fundamental notions upon which our civilization is based. He then underlines the fact that if every culture carries within itself a moral system which is esential for the existence of society, then the gravity of the pertubation which we are submerged into resides in the fact that it provokes the breakdown of the moral order and, subsequently, a crisis of the normative apparatus which operates upon behaviour, thereby blocking the process of integration and unleashing instead a process of social disorder. The crisis with regard to moral values brings about a lack of ad.iustment of social reality and the presence within society of new approaches requires an effort of accommodation on the part of the normative order. The function of Law resides in its assumption of the moral order in that which it possesses as intangible, in order to incorporate it within those readjustments and patternings which reality requires, in each social system, for its concrete application: solely the capacity of reaction of Law to close the widening gap between social reality and the moral framework which informs this reality can enable us to overcome the crisis with regard to the norm. Transfering these general statements to the field of sexual morality -in which the phenomenon of pornography presents itself as an extreme presupposition- the task of the juridical norm is that of pointing out the limits of the moral order which cannot be overstepped in any case whatsoever. This topic connects directly with that of the limitations of freedom which are present in the very essence of this notion, and with the concrete consideration of the freedom of express ion in which the defense of pornography pretends to find protection. The consideration of doctrinal teachings on the questions being studied and of the legal formulations of Compared Law, as well as of the jurisprudential elaboration on the topic, serves to set up the basis for the bounding of the terrain upon which the concept of obscenity or pornography inserts itself and for reaching the conclusion that we find in the concept -especially with the public transcendence which is conferred to pornography due to its externalization and propagation via the mass media- a patented attack against a juridical good in its social dimension and against two values which Law has the duty to protect: the common good of the collectivity and the realm of liberty in which the exercise of the rights of others is articulated. Pornography, therefore, in its diverse forms and manifestations, inserts itself within the juridical·penal framework, which configurates its delictive character. In this field -and revolving around the concepts of anti.iuridicity and typicity as elements of the fault- the author reviews the problematic which, under different aspects, arises from the study of the concept of pornography, either in the order of objective factors or in that of the estimation of the peculiarities which are connected to subjective factors. He then concludes by stating that upon the basis of the necessary social reaction without which no efficient juridical action can be undertaken, it is the duty of the state to set up guidelines and to ordain the matter within an adequate legal norm, without losing sight of the fact that the necessary treatment of sexual matters from different standpoints must remain far removed from the consequences sought to be attained by a revisionistic approach which questions the validity of all moral norms regulating individual or social behaviour.