Free Speech (Problems of Philosophy)

Free Speech

‘Alan Haworth has the rare ability to combine impartial scholarship with the situating of historical writings in their present political and philosophical context. He does this throughout with great clarity, wit, and genuine political concern. I would recommend this outstanding book to anyone at any level interested in contemporary politics and political theory.’ Roger Crisp, St Anne’s College, Oxford In Free Speech, Alan Haworth evaluates the main arguments for free speech and locates them in the context of contemporary debates in politics and political philosophy. Topics covered include the relevance of those arguments to ‘Holocaust denial’ literature and to the ‘Rushdie affair’; their relationship to the contemporary critique of utilitarianism, to cultural and epistemological relativism, to postmodernism, to the ‘libertarianism’ of the new right. Weaknesses and blind spots in the current discussion are traced back to its origins in earlier controversies over religious toleration. In his celebrated defence of the liberty of thought and discussion, John Stuart Mill remarked that unless a doctrine is ‘fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth’. Haworth’s book is written in the conviction that the defence of free speech is in danger of suffering the very fate Mill warned against. Free Speech is sure to appeal to anyone interested in philosophy, politics, and current affairs. Alan Haworth teaches Political Philosophy, Ethics, and the History of Ideas at the University of North London. He is the author of AntiLibertarianism: Markets, Philosophy and Myth.

The Problems of Philosophy Founding Editor: Ted Honderich Editors: Tim Crane and Jonathan Wolff, University College London This series addresses the central problems of philosophy. Each book gives a fresh account of a particular philosophical theme by offering two perspec-tives on the subject: the historical context and the author’s own distinctive and original contribution. The books are written to be accessible to students of philosophy and related disciplines, while taking the debate to a new level.

SOCIAL REALITY Finn Collin

MORAL SELF Pauline Chazan

SUBSTANCE Joshua Hoffman and Gary S. Rosencrantz

IF P, THEN Q David H.Sanford

UTILITARIANISM Geoffrey Scarre

THE IMPLICATIONS OF DETERMINISM Roy Weatherford

VAGUENESS Timothy Williamson

KNOWLEDGE AND BELIEF Frederic F.Schmitt

DEMOCRACY Ross Harrison

MIND-BODY IDENTITY THEORIES Cynthia Macdonald

EXPLAINING EXPLANATION David-Hillel Ruben THE EXISTENCE OF THE WORLD Reinhardt Grossman THE INFINITE A.W.Moore THE MIND AND ITS WORLD Gregory McCulloch NAMING AND REFERENCE R.J.Nelson SCEPTICISM Christopher Hookway KNOWLEDGE OF THE EXTERNAL WORLD Bruce Aune

THE NATURE OF ART A.L.Cothey POLITICAL FREEDOM George G.Brenkert THOUGHT AND LANGUAGE J.M.Moravcsik THE WEAKNESS OF THE WILL Justine Gosling THE NATURE OF GOD Gerard Hughes PERCEPTION Howard Robinson MORAL KNOWLEDGE Alan Goldman

Free Speech

Alan Haworth

London and New York

First published 1998 by Routledge 11 New Fetter Lane, London EC4P 4EE This edition published in the Taylor & Francis e-Library, 2002. Simultaneously published in the USA and Canada by Routledge 29 West 35th Street, New York, NY 10001 © 1998 Alan Haworth All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Haworth, Alan, 1944– Free Speech/Alan Haworth (The problems of philosophy) Includes bibliographical references and index. 1. Freedom of speech. I. Title. II. Series: Problems of philosophy (Routledge (Firm)) JC591.H38 1988 98–13946 323.44'3'01–dc21 CIP ISBN 0-415-148049 (hbk) ISBN 0-415-148057 (pbk) ISBN 0-203-00420-5 Master e-book ISBN ISBN 0-203-20654-1 (Glassbook Format)

…even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but…the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct; the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience. John Stuart Mill, On Liberty

For Ro and Matt

Contents

Preface and acknowledgements PART ONE

1

I An introduction to the argument 1.1 1.2 1.3 1.4

Mill’s argument and Mine The place of Mill’s argument in philosophy and in history What is the problem? Getting the story right

II The liberty of thought and discussion 2.1 Thought and discussion prioritised 2.2 What is ‘thought and discussion’? 2.3 A crack in the fabric: Mill’s ‘corn dealer’ example

III A case study 3.1 3.2 3.3 3.4

A German attack on applied ethics A short exercise in ‘deconstruction’ A note on ‘assuming infallibility’ Conclusion and postscript

IV Truth and consequences 4.1 4.2 4.3 4.4

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The anti-consequentialist consensus The objections from integrity and negative responsibility Assessing the consequences A note on the ‘free market in ideas’

V Consequentialism and the right to free speech 5.1 The anti-consequentialist argument from rights 5.2 Consequentialism: conclusions

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3 3 5 7 16 24 24 26 29 33 35 37 43 50 53 55 56 62 68 70 71 80

Contents

VI The value of truth 6.1 6.2 6.3 6.4 6.5 6.6 6.7

The value of truth and the threat of relativism Value relativism: truth and the good society Value relativism: whose vision? Epistemic relativism: the ‘true believer’ An appeal to science Epistemic relativism: Rorty’s revisionist liberalism Conclusion: are we trapped in a house of mirrors?

VII Areopagitica’s aftermath 7.1 7.2 7.3 7.4

‘One discussion more’ Parallels and perspective Patterns of repression Conclusion: the lie of the land

118 118 120 130 136

Postscript to Part One: taking stock of the classic defence

142

PART TWO

VIII 8.1 8.2 8.3 8.4 8.5

149

Contract and convention

Contract and convention: ‘literal’ contractualism ‘Conventionalist’ contractualism Some interim conclusions Contractualism and value relativism Conclusion: contractualism and rights

IX From the contract to free speech? 9.1 9.2 9.3 9.4 9.5

Free speech as a ‘basic liberty’ Free speech and democracy Free speech and liberty of conscience From the contract to free speech? Contractualism since 1972

X Concerning toleration 10.1 10.2 10.3 10.4

83 83 84 90 93 97 104 113

Locke’s argument from ‘just bounds’ Toleration as a model for free speech Locke’s argument: conclusions The contractualist approach: taking stock

x

151 153 160 161 165 170 174 174 177 185 188 194 198 199 201 206 208

Contents

XI Conclusions and prospects 11.1 Conclusions 11.2 Prospects

Appendix: Milton and Mill: a comparison of extracts Notes References Index

214 214 217

224 229 249 258

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Preface and acknowledgements

It was recently observed that the argument I present here—or a part of it—could be ‘the beginning of the slippery slope’. I had been invited to give a presentation to the philosophy society at a local university, and the comment was made by one of the professors there. It was only in retrospect that I realised what my response should have been. (Why is it that such realisations always seem to come in retrospect?) What I should have done was challenge him to say exactly which slippery slope he had in mind, for there is surely more than one. The incident was a small one, but it serves to illustrate my fear that there is no part of this book which won’t be disliked by someone. Amongst those who think of themselves as champions of liberty, there are many who are too content to treat the stirringly enunciated platitude as a substitute for real thought. Ranked sternly against them there stand the formidable armies of the politically correct; individuals for whom an offence to their own sense of decorum— however idiosyncratic it may be—is quite sufficient to justify a complete legal prohibition on whatever it is they happen to disapprove of. This book will appeal to neither, for it is written against both. Nor is there much here to suit the taste of anyone who thinks of political theory as a gentleman’s pursuit—and, believe me, there are such—just as if it were stamp collecting or tracing the family tree. But, with that said, I remain optimistic that there are others who will see the point. They will agree with me that there is more than one slippery slope—that there are almost certainly more than two— and that the only way to maintain your balance is to keep a constant and vigilant check on your bearings. These others include, first and foremost, the members of the Research Committee of the University of North London’s Faculty of Humanities and Teacher Education. The committee awarded me sabbatical leave in the first semester of

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the academic year 1995–6 and, subsequent to that, a fair amount of relief from teaching. Without that help, I could never have completed the book in a reasonable time. Throughout the period in question, the committee was working under the inspired chairmanship of Professor Alistair Ross. Alistair took a personal interest in the work being done by all the faculty’s researchers, not only established writers but postgraduate students taking their first independent steps. All felt the benefit of Alistair’s support. I should like to thank him for extending that same support to me. In addition, I should like to thank Jonathan Wolff, Roger Crisp, and (even) Routledge’s anonymous reader for their helpful comments and criticism. Thanks also go to Rodney Pickering, for the benefit of his expertise on Greek philosophy, to David Conway, for introducing me to J.B.Bury’s A History of Freedom of Thought, to Megan Redmond for her help with the bibliography, and to Adrian Driscoll and Anna Gerber of Routledge for their patience. Political philosophy is sometimes described as ‘a great conversation across the generations’. The phrase is neither fanciful nor exaggerated. For the past two or three years I have been privileged to feel that I have been a participant in that conversation. For this, I am indebted to the members of the various discussion groups who have made me feel so welcome at their meetings. I am thinking especially of the following: everyone who regularly attends the postgraduate Political Theory seminar at the London School of Economics, especially the organisers, John Charvet and Diemut Bubeck; Philip Cole, Ed Garrett, and the other members of Middlesex University’s Centre for Practical Philosophy; Mike Newman and the others who regularly attend seminars held by the London European Research centre (based here at UNL). Finally, and for much the same reason, I should like to thank Ufu Niazi, Rik Hine, and the philosophy students who, together, founded the University of North London’s Society for Applied Ethics and Political Philosophy. I shall always count giving the inaugural lecture as having been one of my happier experiences. Alan Haworth University of North London, January 1998

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Part One

Relying on an old map can be a risky business. It is as likely as not that you will fail to notice the new threats and traps—those which have arisen or been set in place since the surveyor’s last visit. If you do happen to see them there is the danger that you won’t recognise them for the traps and threats they are; and nor is your peace of mind helped by the knowledge that you might turn out to be somewhere different from where you thought you were. One thing is for sure: No one of sound mind would willingly embark on a journey into dangerous territory equipped only with a map which had last been redrawn almost one hundred and fifty years prior to the time of their departure. And yet, when it comes to free speech, most of us are content to do just that. I mean that the best arguments we have to go on—the best-articulated and worked out— were developed in an earlier world; a world from which our own has grown but which is no longer exactly ours. If free speech is one of civilisation’s key values—as it surely is—then there is good reason for subjecting the map to a re-examination in order to determine with what accuracy it continues to match the lie of the land. The following pages are devoted to just such a re-examination. There is only one place to begin, and that is with the old map; that is, with the argument (or set of arguments) which has played such a dominant role in this area for so long now that it easily merits the title, ‘the classic case for free speech’. The classic statement of that classic case is contained in the famous second chapter of John Stuart Mill’s On Liberty (Mill 1859), so it is only right that we should open with a close and detailed analysis of its strengths and weaknesses. There is much to be learnt from such an analysis, but one lesson deserves mention here, right at the start. It is that in the argument’s fortunes over time we witness one of the great tragic ironies of intellectual history, for the argument is in danger of suffering the very fate it so eloquently warns others against—the

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Part One

fate of degenerating into ‘dead dogma’ (Mill 1859:2, §21).1 Mill had witnessed this in the case of Victorian Christianity, of which he wrote that it exemplified ‘a progressive tendency to forget all of the belief except the formularies, or to give it a dull and torpid assent, as if accepting it on trust dispensed with the necessity of realising it in consciousness, or testing it by personal experience’ (2, §27). The same applies, in our own time, to many who claim to espouse freedom but for whom the free speech principle has, likewise, become dogma, ‘a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience’ (2, §43). So, for all my criticisms of Mill, the moral I draw is the same as his: look what can happen when you use the wrong map. You can lose your direction and—worse—you can carelessly abandon any ground you may have gained.

2

CHAPTER I

An introduction to the argument

1.1 MILL’S ARGUMENT AND MINE The year of On Liberty’s publication, 1859, also witnessed the appearance of Darwin’s, On the Origin of Species by Means of Natural Selection (Darwin 1859). For an indicator of just how much the intellectual world has changed since Mill’s time you need look no further. You need only reflect that the essay is one of his later works, that he would have spent the greater part of his adult life unaware of Darwin’s work, and that for a similar period he would have been just as unaware of Marx’s. There are other landmarks, Einstein’s work and Freud’s, with which Mill could never have become acquainted.1 In fact, the classic defence of free speech did not originate with Mill. It has at least one distinguished precursor in Milton’s essay, Areopagitica (Milton 1974) [1644]. However, it is Mill’s version of that defence which remains the fullest, the most coherently argued, and the most influential. It is, as I have called it, ‘the classic version of the classic defence’. There is no point in my trying to summarise Mill’s argument in my own words because he supplies his own, admirably succinct, summary when bringing his chapter to a conclusion: ‘We have now recognised the necessity to the mental well-being of mankind…of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds’ he writes, and he then lists the ‘four grounds’, as follows: First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of the

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An introduction to the argument

truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct; the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience. (1859:2, §§41–3) If you are to get to grips with this argument you have to start by noting its most salient feature, namely that it draws a variety of connections between the liberty of thought and discussion and the discovery of truth. The sin of ‘assuming infallibility’ (first ground) is, thus, the sin of believing, or pretending, that you are in possession of the truth when you are not. The argument’s central contention (the second ground) is that the discovery of truth is facilitated by the ‘collision’ of opinions which takes place when ideas are discussed. ‘Prejudice’ (third ground) and ‘dogma’ (fourth ground) are to be condemned for the way they impede the search for truth. Having introduced Mill’s argument, let me now give you a brief outline of the course my own is going to take. First of all, then, the present chapter is designed to introduce that argument and to set the stage. It is in the following, chapter two, that I get down to close analysis of Mill’s argument. In it, I concentrate exclusively on the conclusion Mill sets out to establish; the conclusion that free speech —construed as the activity Mill calls ‘thought and discussion’ —is sacrosanct and should be legally protected. After that, in chapter three, I offer supporting evidence for my assertion that Mill’s argument remains influential enough to merit the title ‘classic defence’. This evidence takes the form of a case study drawn from recent events. In chapters four and five I consider the structure of Mill’s argument, and I concentrate especially on that feature which

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An introduction to the argument

has come in for the fiercest criticism over recent years, its consequentialism. (As I have pointed out, it is Mill’s view that the liberty of thought and discussion is to be valued for the consequences of its exercise, the main one being that our knowledge is increased.) Within contemporary philosophy it is frequently assumed that consequentialist arguments are fundamentally flawed. Against this I argue (in chapter four) that Mill’s argument can survive the usual objections quite well. It is often thought, also, that consequentialism has difficulty in accounting for rights, but I point out (in chapter five) that, when it comes to the right to free speech, Mill can offer a more convincing account of that right than many present-day critics of utilitarianism can. In chapter six I discuss Mill’s presupposition that truth—or, more precisely, knowledge of truth—is of great value. This will involve considering the extent to which his argument is threatened—if it is—by various versions of relativism, epistemological and cultural. In chapter seven, I discuss the relation between Mill’s argument and Milton’s in Areopagitica. Finally in Part One, there is a postscript entitled ‘Taking Stock of the Classic Defence’. Of course, Mill’s is not the only argument for free speech. There is also contractualism which has been equally influential over recent years. In Part Two, we move on to consider this. It should be obvious from the foregoing that my discussion is going to centre around Mill’s argument throughout Part One. In each chapter, a different dimension of that argument—its conclusion, its influence, its logical structure—is singled out for special attention. Before I go any further, I should offer an explanation for this focus on Mill. It could be that some readers will be puzzled by it, especially those who are not too well acquainted with this subject. (Such readers will be wanting to ask, ‘Isn’t this supposed to be a book about free speech generally, and not just about J.S.Mill’s argument?’) You will find that explanation in the next section of this chapter, after which (pp. 7ff.) I roughly delineate the main problem—the ‘free speech problem’ if I may call it that—to which this book’s arguments are addressed.

1.2 THE PLACE OF MILL’S ARGUMENT IN PHILOSOPHY AND IN HISTORY There are two main reasons why Part One is focused on Mill’s argument. The first is that we are doing philosophy here, not history.

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An introduction to the argument

To appreciate the present philosophical exercise you must take seriously the ‘map’ analogy with which I opened Part One. It was much more than a rhetorical flourish. (This is not to say that I think of all philosophy in cartographical terms, just that I think of the present exercise that way.) What I have set out to do is, so to speak, to ‘place’ the main arguments for free speech by tracing their relationship to contemporary debates, both outside philosophy and within it. As I was careful to put it a moment ago, the discussion is ‘centred around’ Mill’s argument. That does not mean that Mill’s argument is Part One’s only subject. Far from it; as the discussion proceeds we shall be considering contemporary issues and events (the literature of ‘Holocaust denial’, ‘the Rushdie affair’), a range of philosophical positions, and the work of quite a few writers, including not just Mill and Milton but Peter Singer, Richard Rorty, Herbert Marcuse, and Robert Nozick. By the time we have reached the end of Part One, I hope to have covered in some depth the main topics anyone living now—at the turn of the millenium from the second to the third—is entitled to find covered in a book called Free Speech. So, you could say that I am using Mill’s argument as a kind of thread to guide us through the labyrinth. I suppose that I could have attempted a more conspective presentation, but I am aware that the widest view is quite often the shallowest and, in any case, the point of philosophy is to understand arguments and their ramifications, not simply to itemise and classify them. Let me add that what I hope to avoid at all costs is that ‘great thinkers’ approach to political ideas to which some professors and teachers of philosophy used to subject their unfortunate students, with Plato, Aristotle, Hobbes, Locke, Rousseau, Mill, and others being taken from the cupboard like so many museum pieces, each in his turn, for the routine annual inspection. You would never have guessed that their writings were of more than antiquarian interest, or that there was a great conversation going on across the generations, one in which you might have wanted to participate had you known about it. (Let me add too—and hastily—that I am not saying that anyone taking a historical approach must necessarily fall into this trap. And if this were a book on, say, democracy, there would be good reasons for taking such an approach. Here, though, it happens that the logical order and the chronological are not equivalent.) Of course, an argument can serve as a guiding thread without being well known or influential. Its reputation can be quite obscure,

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An introduction to the argument

but providing it is imaginative, or persuasive, or interesting for some other reason, it will serve the purpose. However, in Mill’s case, the reason I have just given for focusing on his argument is reinforced by a second; this time, a reason which is more historical than philosophical in character. It is that Mill’s argument is more than just one amongst other, equally influential arguments. It really is the classic version of the classic defence. As one piece of evidence for this view of Mill’s predominance, take his argument’s relative lack of ancestry. Not that it lacks all ancestry—I have already mentioned Milton—but, even so, ‘the free speech problem’ is peculiarly modern. I mean that the idea that the expression of belief and opinion is to be taken seriously, that it demands protection, did not really take root in people’s minds until the seventeenth century. Even then, it took the form, not so much of an argument over free speech but a related one, a plea for religious toleration. Indeed, the relationship between the modern argument and these seventeenthcentury precursors will form one of this book’s main recurring themes. (So, for example, the three basic ‘natural rights’ defended by Locke in his Second Treatise of Civil Government do not include free speech—they are life, liberty, and property—and his Letter Concerning Toleration is, quite specifically, a plea for toleration between different Christian sects. It doesn’t even extend to Catholics and atheists. See Locke 1988 [1690] and 1689.) In short, I am saying that to get to grips with Mill’s argument is to get to grips with a substantial proportion of the modern argument for free speech.

1.3 WHAT IS THE PROBLEM? 1.3.1 Free speech and the liberty of thought and discussion This is a stage-setting chapter, and setting the stage for a discussion must involve delineating its subject matter, if only in a rough and schematic way. In the case of free speech, this is not such a straightforward matter. Consider, for example, the potentially damaging objection to my whole way of proceeding, according to which it is a mistake to think of Mill as having advanced any sort of ‘defence of free speech’, let alone ‘the classic defence’. Anyone raising the objection can point out that—after all—Mill’s chapter is entitled ‘Of the Liberty of Thought and Discussion’, i.e. not ‘Of

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An introduction to the argument

the Liberty of Speech’. It could be that I am guilty of having confused these two quite separate liberties, and the charge looks all the more plausible given that ‘free speech’ is not a phrase which occurs anywhere in On Liberty. The objection prompts three preliminary observations. (I think it fails, but I shan’t confront it fully until the next chapter.) The first is that although ‘the liberty of thought and discussion’ and ‘free speech’ are not equivalent—at least not in the sense of being identical in meaning or coextensive in reference—it is only sensible to treat the former as a subclass, a type or species, of the latter. (In case it helps, here is an analogy: even though not all animals are cats, you can still learn a lot about members of the category ‘animal’ from studying members of the category ‘cat’.) The way ‘free speech’ is frequently taken to refer, the two liberties are by no means as distinct as the objection suggests. In line with this, ‘free speech’ is best construed as a generic or ‘umbrella’ shorthand term for a number of distinct freedoms. Freedom of thought and discussion is only one. Examples of other freedoms covered by ‘free speech’, the way the expression normally tends to be understood—or else closely related to freedoms covered by the term—are the freedom of the press, the freedom to participate in political demonstrations such as protest marches, the freedom to participate openly in political meetings, and (possibly) ‘artistic’ freedom from censorship to display and publish work which others may find offensive. All the foregoing activities involve much more than speech, and some hardly involve speech at all. I can certainly appreciate why some writers on this subject prefer to employ the phrase ‘freedom of expression’. For example, in the context of a significant contribution to the debate, Thomas Scanlon defines an ‘act of expression’ as ‘any act that is intended by its agent to communicate to one or more persons some proposition or attitude’ and adds that the class of such acts is extremely broad. It includes ‘displays of symbols, failures to display them, demonstrations, many musical performances, and some bombings, assassinations, and self-immolations’ —in short, a lot more than acts of speech and publication (Scanlon 1972:206). But although Scanlon’s usage is persuasive I have kept ‘free speech’, if only because it is colloquial and familiar. My second observation follows on from this. It is that since ‘free speech’ is a generic expression, one which has to be construed as covering a diverse set of freedoms, then it is more than likely that

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An introduction to the argument

‘it’ will turn out to be open to more than one type of philosophical defence or justification. In fact, that is one of the conclusions I shall eventually draw; that a defence of free speech which focuses on, say, free expression as a necessary condition for a smooth-running democratic process singles out a different class of action and gives it a different justification from an argument which focuses on— say—the liberty of thought and discussion. It will emerge that none of these positions is exactly wrong—at least, not in its essen-tials— although, in certain versions, some are certainly one-sided. For the immediate present, though, it is only necessary to remark that although someone rhythmically chanting a slogan while participating in a political demonstration is quite clearly exercising a right to free speech, even when he or she has, in a sense, ‘gone on to automatic pilot’, it would be stretching things more than a little to describe that person as exercising ‘the liberty of thought and discussion’. The phrase ‘thought and discussion’ —redolent of the seminar room as it is—suggests something much more selfconscious, deliberate, and measured. My third observation takes the form of an irony. Assuming that they form more than a rag-bag collection, whatever the relation between the various freedoms which count as forms or variants of free speech may eventually turn out to be—the freedom to think and discuss, the freedom to demonstrate, and so on—it is clear, paradoxically enough, that the simple freedom to speak is not amongst them. To appreciate the point, you need only consider that even under the most repressive and all-embracing totalitarianism it would very likely be possible, sometimes, to creep away to some private closet or dark corner and mutter as you like. You would then have the freedom to speak, at least when in your closet. (I mean the negative freedom from obstacles or interference to perform the action of speaking.)2 But, the way ‘free speech’ is normally taken to refer, one thing you certainly would not have is free speech. Unless this were so, the dictator who says, ‘Of course people have free speech under my regime: there is neither the time nor the money to spend making sure nobody ever gets away with it’ would be neither a fool nor a cynical joker, whereas in reality he would have to be one or the other.3 This raises the question of what else has to be the case— of the context in which speaking must take place—before a person can be said to be exercising free speech. (Actually, this is not quite the question. To be strictly accurate, the question is, in what context must speaking, writing, typing, faxing, putting information out on

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the internet, ‘signing’ for the deaf, communicating by semaphore or morse code, etc. take place if they are to count as instances of the exercise of free speech. In other words, and in case it isn’t obvious, I am using ‘speaking’ and ‘writing’ as shorthand terms to cover a multitude of other activities.) Let us now consider this.

1.3.2 From the freedom to speak to free speech If an argument is to count as a genuine defence of free speech, as opposed to the simple freedom to speak, it seems to me that it must satisfy the following criteria. (i)

It must identify a class (or some classes) of acts and argue for their protection by embodiment in law and/or political practice. (ii) Those acts must be speech acts in the sense that their main function is to communicate a proposition, or set of propositions, to others. (iii) It must treat the right to free speech as a public right— ‘public’ in the sense that it can be exercised by any non-assignable member of the community—and not as exclusive to a subgroup or élite. (iv) It must ground the right to free speech in the context of a wider, liberal, value system; —‘liberal’ in the sense that it (a) attaches enormous, if not supreme, importance to individual liberty; (b) treats a specific set of freedoms (from the interference of authority) as constitutive of the good society; and (c) grounds the former view in a more general conception of the nature of human freedom. These criteria are minimal. They can be satisfied by different arguments which identify quite different classes of act as worthy of protection under the ‘free speech’ banner.4 They also require some explanation, so let me take each in turn. (i) A defence of free speech must identify a class (or some classes) of acts and argue for their protection by embodiment in law and/or political practice This should be clear enough. To see why, all you need do is recall the ‘totalitarian’ scenario I imagined a moment ago and note that, within that context, you just escape to your secret corner, speak, and hope to get away with it. No relevant freedom or right is institutionalised through embodiment in law or practice. No

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one could plausibly argue that free speech is genuinely respected under a regime where speaking is something you have to get away with— like a crime—and that is why the dictator’s wisecrack that his subjects are free because there is neither time nor money to suppress everyone is so cynical. It follows that the context required to convert ‘speaking’ to ‘exercising free speech’ must at the very least include the institutionalisation of the former. However, although this states a necessary condition for the existence of free speech, it is by no means a sufficient condition. An example will help illustrate why. Imagine, then, that the ruling junta of some monolithic, one-party, totalitarian state decides to erect ‘free speech booths’ at accessible points throughout the land; at street corners in cities and towns and elsewhere. Suppose that these resemble telephone booths but that, unlike telephone booths, they have no windows. Suppose that they are sound-proof, too. The point is that once inside the booth you have complete privacy. Under the system you are at liberty to enter an unoccupied booth whenever you like and express any opinion you want in any tone of voice. You can mutter imprecations or you can scream out loud ‘Down with the dictators!’ Let us suppose that there is even a graffiti wall with pens provided gratis and that—as you leave—this is automatically wiped clean, ready for the next occupant. 5 In this example the freedom to speak has now become institutionalised. No longer do you have to ‘get away’ with anything. On the contrary, when you enter a booth you are about to exercise a legitimate right. It is even a system for which the dictators themselves can give a (possibly misguided but not necessarily cynical) rationale. For example, they can confidently, and with justification, make the following claim. Now that we have introduced free speech, people who use our booths regularly feel much better for doing so. They are happy and well-adjusted. As citizens, they are more balanced, constructive, and cooperative. But although the system of free speech booths grants people an institutionalised right to speak freely, I do not believe they have the right to free speech, at least, not as the phrase ‘right to free speech’ is generally understood. Nor is their justification for the system a genuine defence of free speech. It follows, as I am claiming, that the institutionalisation, and consequent legitimisation, of the

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freedom to speak is not by itself sufficient to create a right to free speech. Incidentally, note that the ‘free speech booth’ example may also be used to illustrate the familiar point that any authority—certainly any state—must come to terms with the essentially private character of thoughts. Let us take a brief pause to consider this. Here is the version of that argument which opens J.B.Bury’s A History of Freedom of Thought (Bury 1951) [1913]: It is a common saying that thought is free. A man can never be hindered from thinking whatever he chooses so long as he conceals what he thinks. The working of his mind is limited only by the bounds of his experience and the power of his imagination. But this natural liberty of private thinking is of little value. It is unsatisfactory and even painful to the thinker himself, if he is not permitted to communicate his thoughts to others, and it is obviously of no value to his neighbours. Moreover it is extremely difficult to hide thoughts that have any power over the mind. If a man’s thinking leads him to call in question ideas and customs which regulate the behaviour of those about him, to reject beliefs which they hold, to see better ways of life than those they follow, it is almost impossible for him, if he is convinced of the truth of his own reasoning, not to betray by silence, chance words, or general attitude that he is different from them and does not share their opinions. Some have preferred, like Socrates, some would prefer today, to face death rather than conceal their thoughts. (Bury 1951:1) Just briefly, the pros and cons of Bury’s argument are as follows. First, he has a point to the extent that no technique of thought control has yet been devised which is so effective that the controllers can be guaranteed 100 per cent success in the manufacture and manipulation of opinion. This being so, independent thought is something authority has to come to terms with. However, against this it has to be said, secondly, that thought control can be more effective—and is, in fact, increasingly more so —than Bury’s argument will admit. The rhetorical allusion to Socrates, that he was one of those who would ‘prefer…to face death rather than

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An introduction to the argument

conceal their thoughts’ notwithstanding, I am sure there are many who quite unselfconsciously, and quite unconsciously, trim their opinions in response to persuasion, overt or covert. (To take another example, Locke is likewise wrong to assert, in his Letter Concerning Toleration that, ‘such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force’; so immune, according to Locke, that, ‘Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgement that they have framed of things’. Locke’s claim may be true for some individuals, but I doubt that it is true for all.) (Locke 1689: §10).6 Thirdly, Bury is right to say that forcing an individual to keep quiet has a certain downside, i.e. that, ‘It is unsatisfactory and even painful to the thinker himself’ (Bury 1951:1). In any case, and as he says, keeping quiet can be difficult because it can be ‘almost impossible’ for a person, ‘if he is convinced of the truth of his own reasoning, not to betray by silence, chance words, or general attitude that he is different from them [others] and does not share their opinions’, (ibid.). However, it is one thing to point this out and quite another to attempt to rest a fully developed argument for the liberty of thought and discussion, or for free speech, on its foundation. It may well be that, ‘freedom of thought includes, in any valuable sense, freedom of speech’ (ibid.). Bury thinks it does, but the conclusion does not follow directly from the premise of thought’s (supposedly) unassailable privacy. In fact, all that follows from this premise is that authority must take steps to accommodate that privacy by, for example, alleviating the ‘unsatisfactory and painful’ effects of keeping one’s thoughts to oneself. It is this last end—the alleviation of ‘unsatisfactory and painful’ effects—which the free speech booth system is devised by authority to achieve, of course. More generally, it is pretty clear that the situation of the individual secluded within the booth parallels that of the thought inaccessibly centred within a Cartesian ego. It follows that anyone using the example to make the same point as Bury would be open to the same objections. With that said, let us now turn to the second of the criteria listed above. (ii) The acts singled out for protection by a defence of free speech must be speech acts in the sense that their main function is to communicate a proposition, or set of propositions, to others Please don’t forget that I am construing ‘speech’ (like ‘writing’) widely to include much else besides straightforward speaking. For example, I

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would include communicating by morse code as a form of speech. Don’t forget, either, that—say—a street demonstration can be a means of communicating a belief or attitude to others, so, in my extended sense, demonstrating in the street can be a form of speech act. There are three points needing to be made here. The first is that a successful speech act normally requires at least two people, not just a ‘speaker’ but a ‘hearer’ to whom the speech is addressed, and who actually receives the message. (It is even arguable that solitary speech is not really speech in the full sense at all. I shan’t pursue that line here because, wherever it may turn out to lead, it is quite clear that the occupants of the free speech booths, being solitary, are not performing genuine speech acts.) The implication of this for an account of free speech is that such an account must consider not only speakers, but hearers too. It is also likely that a full account will have to consider members of the ‘audience’, those third parties who witness the exchange, but who do not directly participate, and not only them but ‘bystanders’, those who are affected by the fact that the exchange has taken place but who are neither participants nor members of the audience.7 To put it less abstractly, a credible philosophical account of the freedom to speak must consider such factors as the justification, if there is one, for the expectation on the part of a speaker that he or she should have access to an audience; the right of everyone to have access to a debate, even those who do not choose to participate, the case for freedom of information, and much else besides. However—the second point—a speech act, even a speech act in a public context, is not necessarily equivalent to an exercise of free speech. To see the point, you need only imagine a system in which more than one person at a time is allowed to enter a free speech booth, so that one can speak to the others. With this change, you now have at least one speaker and at least one hearer. Genuine speech acts can take place. But even with the change—even with the performance of genuine speech acts—what goes on in the booths cannot be counted as a genuine exercise of free speech. The third point follows. It is that free speech is genuinely exercised only when speaking takes place in certain types of context. It is, thus, context which determines whether an utterance is a contribution to thought and discussion, say, as opposed to an offensive remark or just a solitary expression of discontent.

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(iii) A defence of free speech must treat the right to free speech as a public right— ‘public’ in the sense that it can be exercised by any non-assignable member of the community—and not as exclusive to a subgroup or élite This is the least controversial of the criteria. I think most readers would question whether an argument which confined the right to free speech to an assignable group—even a sizeable one such as the middle classes or the members of a dominant ethnic group—could be unreservedly classed as a defence of free speech. Certainly, an argument which confined the right to a small élite—the scholars who reside in a particular monastery, say— could not be counted as such.8 (iv) A defence of free speech must ground the right to free speech in the context of a wider, liberal, value system As stated, a value system—or, if you like, an ethical-political world view—is ‘liberal’ in the sense of the term I am employing here if it (a) attaches enormous, if not supreme, importance to individual liberty; (b) treats a specific set of freedoms (from the interference of authority) as constitutive of the good society; and (c) grounds the former view in a more general conception of the nature of human freedom. This is a broad definition of ‘liberal’ which can also be taken to cover—for example—certain positions normally classified as socialist. However, I think it is in line with a central sense of the term frequently employed in political theory. 9 The criterion captures another feature the ‘free speech booth’ example can be used to illustrate, for it implies that members of the public who use the booths, although they have a certain freedom to speak, do not thereby have free speech because the freedom they do have is not enforced by their government as part of a liberal policy. At least, this follows— or so I am claiming—for ‘free speech’ as the phrase is normally understood. Let me emphasise the point. I am saying that there is a generally recognised sense of ‘free speech’ in which a defence of free speech is a defence of a particular component, the true function of which can only be understood in terms of its place within a broader ethical and political view. It follows that articulating such a defence, or an analysis of such a defence, or of such defences—articulating an attack on freedom of speech for that matter—must largely involve the articulation of one or more liberal visions of the good society. If you agree with me that the free speech booth system instituted by my imaginary dictators does not permit the genuine exercise of free

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speech, you can be sure that your inclination to say so, like mine, is conditioned by the fact that they are not acting as liberals. Now, I am sure there will be readers who want to challenge this, and, in a way, they would have a point. After all, this cannot be an exercise in ‘ordinary language philosophy’ because the phrase ‘free speech’ has no well-established, rule-governed usage, one which is so well-embedded in day-to-day linguistic practice that it can be treated as independent of philosophers’ attempts to codify it. (My relation to my subject is not like Galileo’s, with his telescope, to Jupiter.) However, I would still dismiss any objection along these lines because in treating free speech as an aspect of the liberal vision I am doing what, as I have said, anyone picking up a book called Free Speech is reasonably entitled to expect its author to do. Of course, I could have done something different, but this would have meant changing the subject. Worse, it would have meant changing it from an interesting subject to a boring one.

1.4 GETTING THE STORY RIGHT In summary, we are about to set out on an exploration of the foundations of a major liberal value. By the end of the book we shall have covered the main positions it is possible to take, and the arguments surrounding them, in some detail. But before embarking on the main discussion I should return, if briefly, to two points I raised earlier in the chapter. The first is the ‘great thinkers’ approach to questions in political philosophy. I have already commented that this has its risks. One is the risk of superficiality. Another is the risk of missing the point by substituting the itemisation or rehearsal of past arguments for the intellectual labour of getting to grips with their structure. There is yet another which I have not so far mentioned, and this is the risk of seeing things which aren’t really there. The point is that if you set out to tell a story—or ‘the great story’ —you are presupposing that there really is a story to be told. (The most ploddingly routine and conventional way to proceed would be to begin with Plato.) This means that if it should happen that there is no story there, you will just end up telling some story or other. In other words, you will claim to detect a thread linking arguments which have been put forward at different times in the past when, in fact, there is no such connecting thread.

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For a good example of how this can happen, take the case made out by J.B.Bury in the book I mentioned earlier, his A History of Freedom of Thought (Bury 1951). Bury’s book was written for a popular audience. (It originally formed part of the ‘Home University Library of Modern Knowledge’.)10 Therefore, I think we can safely assume that his argument represents one strand of conventional received opinion.11 Here is how he introduces his subject: At present, in the most civilised countries, freedom of speech is taken as a matter of course and seems a perfectly simple thing. We are so accustomed to it that we look on it as a natural right. But this right has been acquired only in recent times, and the way to its attainment has lain through lakes of blood. It has taken centuries to persuade the most enlightened peoples that liberty to publish one’s opinions and to discuss all questions is a good and not a bad thing. (1951:2) Then, for the next two hundred pages or so, Bury goes on to relate the saga of how the ‘natural right’ to freedom of thought was eventually won after millennia of struggle through lakes of blood. (Incidentally, notice how Bury’s easy and automatic association of ‘freedom of speech’ with the ‘liberty to publish one’s opinions and to discuss all questions’ serves to confirm my earlier point that taking free speech seriously means dealing with a range of related liberties.) The trouble with this is that Bury’s claims to objectivity are undermined by the way his narrative so strongly reflects contemporary preoccupations. (I mean the preoccupations of his own contemporaries, but these would not have been so dissimilar from those of the present.) Progress is, thus, portrayed as the steady advance of scientific rationality, according to which ‘the facts which we can safely accept must be capable of demonstration or verification’, in the face of opposition from irrationalistic, authoritarian, forces. The latter are identified almost exclusively with religion. Just for example, Constantine the Great’s adoption of Christianity is described as ‘a momentous decision’ which ‘inaugurated a millenium in which reason was enchained, thought was enslaved, and knowledge made no progress’ (ibid.: 37). By contrast, a chapter on the seventeenth and eighteenth centuries is introduced with the claim that, ‘During the last three hundred years

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An introduction to the argument

reason has been slowly but steadily destroying Christian mythology and exposing the pretensions of supernatural revelation’ (ibid.: 101). The nineteenth century is introduced as the century in which the conflict between scientific fact and religious superstition really got under way. The point is the juxtaposition of ‘reason’ and ‘scientific fact’ (good) against ‘Christian mythology’, ‘supernatural revelation’, and ‘religious superstition’ (bad) Notice that, although he begins with the Greeks, Bury’s narrative only serves to confirm the pre-eminence of Mill’s influence, for the story is pretty much the story Mill himself would have told. Indeed, Bury acknowledges a debt to Mill in his final chapter (ibid.: 188ff.). Against this type of narrative, we should at least entertain the possibility that there is no linking thread; that the various ethical and political arguments which have been advanced at various times in history and which, for one reason or another, can be categorised without strain as prioritising free speech, are only loosely related. Perhaps their only common feature is that they emphasise the expression of propositions in the public arena. The second point to which I should make a brief return is my contention that the philosophical problem of free speech is of peculiarly modern origin. This needs support. I don’t suppose many readers will find it too surprising that free speech, or similar liberal values, should have received little emphasis during the medieval period. With its economy based on serfdom, its hierarchical social order, and its equally hierarchical rationale for that order, there would have been nothing in the received world view to provide such ideas with much of a toehold. (However, I don’t suppose, either, that Bury’s characterisation of the period as ‘reason in prison’ is quite right. There would have been intellectual activity, although this would have been much more confined to certain groups than it is now.) (See Bury 1951:37ff.) But what of the Athenians of the fifth and fourth centuries BC? With their democracy, wouldn’t their arguments and concerns have prefigured our own in certain ways? It seems not. Take the way Pericles extols the virtues of the Athenian constitution and way of life. Here each individual is interested not only in his own affairs but in the affairs of state as well: even those who are mostly occupied with their own business are extremely well-informed on general politics—this is

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peculiarity of ours: —we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all. We Athenians, in our own persons, take our decisions on policy or submit them to proper discussions; for we do not think there is an incompatibility between words and deeds; the worst thing is to rush into action before the consequences have been properly debated. (Thucydides 1954 [circa 410BC]: 145) The passage is taken from Thucydides’s record of Pericles’s great funeral oration for those who fell in the first year of the terrible war against the Spartans. I cite it here because it is generally thought to be the definitive affirmation of Athenian values. The noticeable point is that, although Pericles portrays participation in policy-making discussion as integral to citizenship, there is no suggestion that there is a ‘right’ here—certainly no ‘liberal’ right—something which can be threatened and which needs protection (against the totalitarian state, say, or ‘the tyranny of the majority’). It is just taken for granted that a free Athenian citizen will speak his mind and play his part: as Pericles remarks, ‘it is a peculiarity of ours’. A little earlier in the oration, he says this: No one, so long as he has it in him to be of service to the state, is kept in political obscurity because of poverty. And, just as our political life is free and open, so is our day-to-day life in our relations with each other. We do not get into a state with our next-door neighbour if he enjoys himself in his own way, nor do we give him the kind of black looks which, though they do no real harm, still do hurt people’s feelings. We are free and tolerant in our private lives; but in public affairs we keep to the law. (Ibid.) In so far as the Athenians can accurately be described as having ‘valued free speech’, there you have how they valued it, as just one aspect of a characteristically Athenian ‘freedom and openness’. Having said that, though, I should add the following. At this point I am sure that there will be many readers wanting to remind me that it is none other than an Athenian from the fourth century BC who is

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commonly credited with having drafted the first blueprint for a society organised along totalitarian lines. Of course, I mean Plato’s Republic (Plato 1987) [375BC]. Apart from that, it is well known that, as part of the blueprint, Plato argues for censorship. This should be relevant to a philosophical discussion of free speech, so it seems that I shall have to discuss Plato after all, if only by adding the following comments. First of all, it seems to me that whether you characterise Plato as a precursor of totalitarianism—and, more to the point, whether you think Plato’s alleged totalitarianism is of a type which ought to be discussed in a book on free speech—depends on which sections of the Republic you think are relevant to this charge, and why. (Incidentally, the best-known version of this charge was levelled against Plato by Sir Karl Popper in the first volume of The Open Society and its Enemies) (Popper 1945). Readers who know the Republic will think, right away, of Part Three, in which Plato discusses the early education of the ‘philosopher kings’ who are to rule his ideal state. This section of his book opens with a lengthy discussion of the literature the fledgeling rulers will be permitted to read. As the ‘Socrates’ character through whom Plato speaks describes the project, ‘it seems that our first business is to supervise the production of stories, and choose only those we think suitable, and reject the rest’ (Plato 1987:131). We are then informed that, for example, ‘the foul story about Ouranons and the things Hesiod said he did, and the revenge Cronos took on him…is not fit to be lightly repeated to the young and foolish’ so that ‘it would be best to say nothing about it’ (ibid.: 132); that ‘if we want our prospective guardians to believe that quarrelsomeness is one of the worst of evils, we must certainly not let them be told the story of the Battle of the Giants’ (ibid.). And so on. However, considered by itself, this hardly adds up to evidence that Plato was a totalitarian, or that the censorship he was advocating seriously threatened free speech. For one thing, Plato is advocating censorship for the proto-philosopher rulers only. There is no suggestion that it should be applied in the case of the mass of the population. On the latter group, Plato is, for the most part, quite silent. We may as well assume that they can be left free to read, and to listen to, whatever stories they like. This is hardly ‘totalitarianism’. That apart, the censorship is applied to the rulers’ reading material when they are at a young and tender age. But you don’t have to be Stalin, or any sort of dictator, to believe that young

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children should be prevented from reading certain material. You just need to be a morally responsible parent. (In our own times, it is normally thought quite OK to prevent children from having access to material which is violent, sexually explicit, or which fosters racial or sexual stereotypes.) 12,13 So, the passages on censorship are hardly conclusive evidence that Plato was a totalitarian enemy of free speech. However, you would have to be taking a simple-minded view of the subject to think that these are the only relevant passages. Another passage relevant to the charge of totalitarianism—one which lends it ammunition—is the famous section of the Republic in which Plato suggests that a ‘noble lie’ should be told by the rulers to the public at large to keep them in order. (This is the ‘myth of the metals’ according to which some people are born with gold in their souls, some with silver, and some with iron or bronze. According to the myth, only the first are destined to become philosopher kings.) (1987:181) This is not censorship but, like censorship, it is a form of thought control. It is, thus, related to censorship and it is— therefore—the sort of phenomenon which a full discussion of free speech ought to take account of. It seems, then, that there is evidence both against and in f a vo u r o f t h e c l a i m t h a t P l a t o , b e i n g a n a d vo c a t e o f totalitarianism, was an enemy of free speech, and I am sure that it would be possible to continue in this vein for some time. However, it seems to me that the really salient point is not something to be determined just by the analysis and interpretation of Plato’s text. Rather, it lies in the relationship of Plato’s argument to the ideals set out by Pericles in his funeral oration for, whatever may hang on nice details of interpretation, the former is quite clearly a response to and a rejection of the latter. Not only that, but whereas Pericles was outlining what, for an Athenian citizen, would have been a normal view of things, Plato was a kind of ideological renegade. There is a disturbing contrast here between Athenian times and our own. To see it, you need only turn to Thomas Scanlon’s article, first published in Philosophy and Public Affairs, ‘A Theory of Freedom of Expression’ (Scanlon 1972: this is the ‘significant contribution to the debate’ I referred to earlier). I am not thinking of the details of Scanlon’s argument, but of the way he sets out the general lines of the free speech problem in his article’s opening sections. Thus, the whole piece is prefaced by the following

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quotation from a judgement by the American legal expert, Justice Oliver Wendell Holmes. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. (Scanlon 1972:204) 14 In other words, if there is an end you desire to achieve, and you have the power to achieve it, it is just as irrational to let someone impede you by their speech as it is to let them impede you by their actions. Scanlon thinks it is the task of a doctrine of freedom of expression ‘to answer this charge of irrationality’ and that it must do so by singling out ‘a class of “protected acts” which it holds to be immune from restrictions to which other acts are subject’ (ibid.: 204). It is easy to appreciate the apparent common sense of Holmes’s position and, likewise, the measured sanity of Scanlon’s response to it. But now compare the relationship between Scanlon and Holmes with that between Plato and Pericles. The latter is neatly encapsulated in the juxtaposition of the following sentences. The first is drawn from Pericles’s funeral oration. The second is the definition of justice given by Plato in the Republic. We do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all. (Thucydides 1954:145) When each of our three classes (businessmen, Auxiliaries, and Guardians) does its own job and minds its own business, that…is justice and makes our state just. (Plato 1987:206) 15

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For the Athenians, free expression in the public arena was the norm and a special case had to made out for attacking it. In our own times, the boot appears to have shifted to the other foot. A special case has to be made out for the defence of free expression. There must be a lesson for us somewhere in this depressing contrast. But, for now, it is time to turn our attention to the modern case for free speech, and we begin—in the next chapter— with the position Mill’s argument is designed to establish.

FURTHER READING Two of the most recent scholarly discussions of On Liberty are C.L.Ten’s Mill on Liberty (1980) and John Gray’s Mill on Liberty: A Defence (1983). Both contain sections specifically devoted to Mill’s argument for the liberty of thought and discussion. Maurice Cowling’s Mill and Liberalism (1963) and Gertrude Himmelfarb’s On Liberty and Liberalism (1974) are more contentious in their interpretations of Mill. Many contemporary criticisms of Mill were foreshadowed by James Fitzjames Stephen in his Liberty, Equality, Fraternity (1991) [1874]. For a brief history of the Athenian constitution, I suggest John Thorley’s Athenian Democracy (1996). Karl Popper’s portrait of Plato as an originator of totalitarian ideology is in the first volume of The Open Society and its Enemies (1945). For examples of the controversy it generated, see Renford Bambrough’s collection of essays, Plato, Popper, and Politics (1967).

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CHAPTER II

The liberty of thought and discussion

2.1 THOUGHT AND DISCUSSION PRIORITISED The second chapter of On Liberty is entitled ‘Of the Liberty of Thought and Discussion’. Its title is not ‘Of the Liberty of Speech’ and, as I have already remarked, this exposes me to a potential objection. According to that objection, the liberty of thought and discussion and the liberty of speech are quite distinct, which means that I am mistaken to think of Mill’s argument as any sort of defence of the latter. In partial response to the objection, I have already pointed out that the two freedoms are not as distinct as all that. The phrase ‘free speech’ designates a generic, ‘umbrella’ category, and the liberty of thought and discussion is most accurately conceived as one member of that category. It follows that when you exercise the liberty of thought and discussion you exercise one form or variety of free speech (see above, pp. 7ff). This suggests that the right way to handle the objection is with a guarded, rather qualified, response; that is, with the response that while it is not a mistake to treat the liberty of thought and discussion as a dimension of free speech, there may be other varieties of the latter to which Mill’s arguments do not apply. (Remember the analogy: a cat is one type of animal, but not everything which is true of the cat is true of every animal.) However, the classic defence is more ambitious than this. It prioritises the liberty of thought and discussion by treating it as the model—the ‘paradigm’ or pattern— to which any freedom one might well want to characterise as an exercise of free speech must correspond.

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The liberty of thought and discussion

Just consider the following list of phrases. Each is used by Mill during the course of his argument: ‘the liberty of expressing and publishing opinions’ (1859:1, §12); ‘the liberty of the press’ (2, §1); freedom from ‘a legislature or an executive, not identified in interest with the people’, seeking to ‘prescribe opinions to them and determine what doctrines or what arguments they shall be allowed to hear (2, §1). Consider also how, in illustration of one of his arguments, Mill writes that, ‘In politics…it is almost a commonplace that a party of order or stability and a party of progress and reform are both necessary elements of a healthy state of political life’, and he proceeds to discuss the party system at some length (2, §36). Finally, note that the great majority of the examples Mill uses to illustrate his argument are drawn from the history of persecution or toleration in religion. For example: History teems with instances of truth put down by persecution. If not suppressed forever, it may be thrown back for centuries. To speak only of religious opinions: the Reformation broke out at least twenty times before Luther, and was put down. Arnold of Brescia was put down. Fra Dolcino was put down. Savonarola was put down. The Albigeois were put down. The Vaudois were put down…. (2, §17)1 And so Mill continues for the greater part of a fairly lengthy paragraph. The whole saga is drawn from the history of religion. (Incidentally, this is not entirely an accident, even though Mill could easily have chosen a different type of example with which to illustrate his point. The passage betrays his argument’s ancestry in an earlier debate over religious toleration. As I have said, the theme is one to which we shall be returning at various points throughout the discussion.)2 It is obvious that Mill’s chapter, ‘Of the Liberty of Thought and Discussion’, is about a lot more than the liberty of thought and discussion. As the list of quotations shows, it also covers, at least, press freedom, the freedom from censorship of all sorts, the freedom to say whatever you like, adversarial politics as exemplified by British parliamentary institutions, and the freedom to hold any religious belief you choose. It seems that either Mill is assuming that arguments sufficient to demonstrate the virtues of thought and

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The liberty of thought and discussion

discussion apply equally well to the other activities he lists or, conversely, he is assuming that those activities are themselves cases of thought and discussion. There are, certainly, good prima facie reasons for thinking Mill’s prioritisation of thought and discussion is open to question and idiosyncratic. For example, the tabloid press regularly demonstrates that the liberty of a newspaper to publish as it likes and the liberty to contribute to a process of thought and discussion need hardly overlap. Or take adversarial politics. It isn’t always realistic to think of what goes on in a governing assembly, such as the British parliament, as a disinterested exercise in the pursuit of truth. (It is in many ways more accurate to think of parliament as a device for controlling and reconciling conflicts of interest. Indeed, there is another essay, Representative Government, in which Mill (1861) portrays it in just that way himself.) And those are just prima facie, ‘first glance’, reasons. As this enquiry progresses we shall be considering exactly where Mill’s presupposition casts light, and where it leaves blind spots. But I think it will be clear that the most immediately pressing task now is to determine exactly what Mill takes ‘thought and discussion’ to be.

2.2 WHAT IS ‘THOUGHT AND DISCUSSION’? So, what exactly is it that you do when you ‘exercise the liberty of thought and discussion’? To begin with, let me recall a point I made earlier, in Chapter One (see p. 9). There, I pointed out that the freedom to speak and free speech are by no means equivalent and that if an exercise of the former is to qualify as an exercise of the latter also, it must take place in a given context. (Thus, you can sneak away to some private place where no one can hear you, you can speak out loud and can say what you like. When you do, you have the freedom to speak but you are not exercising free speech.) By the same token—and the liberty of thought and discussion being one form of free speech—an act of speaking or writing (or typing, faxing, setting up a website, and so on) requires a context if it is to count as an exercise of the liberty of thought and discussion also. Let me spell this out with the help of a parallel. (It is a parallel of a type which will be familiar to many philosophers.) Suppose that you raise your right arm so that it is extended roughly at right angles to your body. Now ask: when is ‘raising your right arm’ in the manner

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The liberty of thought and discussion

described also a case of ‘signalling to turn right’? The answer— clearly—is that the former becomes a case of the latter only if certain other features are present. For example, it has to be the case that you are in charge of a vehicle, a car or a bicycle; that there must be a commonly acknowledged system of rules and procedures—the ‘rules of the road’ —without which no one would recognise your gesture as a signal; without which, indeed, it would not be a signal. Notice also that a difference of context can make a difference of significance. Where you are a linesman in a soccer match, say, the same movement of the arm might count as a case of signalling that someone has broken the off-side rule. In yet another —on the street—it might be a conventional form of greeting. My point is that what goes for the gesture here also goes for the word. As with the gesture, an act of speaking or writing becomes more than just ‘uttering a proposition’ or ‘committing a proposition to paper’, it is ‘an exercise of the liberty of thought and discussion’ also, only given a certain context. Asking what counts as ‘exercising the liberty of thought and discussion’ is equivalent to asking what defines that context; what are its characteristic rules and procedures, what—or so one might continue—has to be different about the context if the act is to become, instead, an exercise of ‘political freedom’ or a case of ‘incitement’. Approach Mill with such questions in mind and it becomes clear enough that the liberty he is defending is—to coin a phrase— ‘the liberty of the seminar room’. Picture it as follows: a group of earnest and rational individuals is assembled. Their purpose is to find truth. Members of the group take turns to advance propositions— ‘opinions’ —for consideration by the others. Arguments for and against are elaborated and tried out in the hope that some advance towards truth will be made. All opinions, even those which are on first appearance quite wild and extravagant, are treated with equal seriousness. What I have been calling Mill’s ‘prioritisation of thought and discussion’ amounts to the presupposition that the case for that way of collectively striving for truth and the case for other freedoms such as absolute ‘liberty of expressing and publishing opinions’ are equivalent. The presupposition is rendered most apparent by the way Mill’s argument is premised on the value of truth and by its central claim, that our chances of finding truth are much enhanced when it is possible to constantly pit ideas, one against the other, in the arena of debate. To see just how apparent, you need only refer to the passage in which Mill summarises his argument under four headings.

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The liberty of thought and discussion

I mean the passage I quoted in full in the opening section of chapter one (Mill 1859:2, §42; see p. 5, above). There Mill summarises his central thesis with the contention that ‘it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied’ (ibid.). Clearly, it will be necessary to explore this claim in detail and, in due course, I shall. For the moment, though, I shall confine myself to two observations. The first is that it is easy to appreciate how naturally it would have come to Mill to make the presupposition. You only have to consider the rarefied intellectual milieu within which he moved. I can think of no present-day academic journal to parallel The London and Westminster Review for which Mill was able to produce such long and weighty pieces as his essays on Bentham, Coleridge, and Auguste Comte (Mill 1987a; 1987b; 1961). It is evident that Mill could assume the existence of a well-educated readership with wide interests; a readership upon whom he could rely to carefully absorb and critically reflect upon his ideas. In writing for the Review, Mill would, in effect, have been placing his best worked-through thoughts before the members of an extended élite seminar group. It is hardly surprising that he should have founded his picture of that part of the world in which opinions are formed on an idealised model of the seminar group; that is, as a sort of extension of the debating societies, such as the Utilitarian Society, of which he had occasionally been a member. There is, nevertheless, something quite sophisticated and contrived— something ‘artificial’ —about participation in a seminar. That is my second observation, and it can take a little reflection to realise just how sophisticated the behaviour is. The point is that no seminar can run successfully unless there is tacit or explicit agreement amongst its members to a fairly complex set of conventions, rules, and procedures. Just as there are rules of the road, so there are ‘rules of the road for seminars’. Thus, it has to be assumed that the point of the exercise is to examine the merits of conflicting or competing views, that those views must be assessed against certain standards of rationality, that only arguments which are worth considering in this light should be advanced, that all arguments satisfying the foregoing proviso must be treated with respect and seriousness, that however apparently bizarre someone’s argument or opinion may be, it must never be greeted with outright derision or violence, that one must listen and try not to interrupt when others are speaking, and that one must never dominate or ‘hog’ the discussion, and so on. Flout such rules for very long, and you don’t have a seminar any more, and not just for the practical reason that your

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The liberty of thought and discussion

seminar would collapse, but because the rules define what a seminar is. To participate in a seminar is, therefore, to exhibit fairly sophisticated behaviour. A seminar is, in short, a sort of institution. It is at least arguable that centuries of civilisation had to pass before humans became capable of any such thing. If such considerations are anything to go by, it is an unlikely hope that much generalisation from the ‘seminar’ model to other areas of human behaviour will turn out to be possible. Yet that is what Mill’s argument assumes.

2.3 A CRACK IN THE FABRIC: MILL’S ‘CORN DEALER’ EXAMPLE If you are searching for weakness in the position some philosopher is seeking to defend, look for the bad arguments. I don’t mean the ordinarily bad ones. I mean the really bad; those arguments which are remarkably ineffectual and inept. You can encounter these, even in the work of the most serious, meticulous, writers. Quite often, they are like hairline fissures in the fabric of a building, symptomatic of great weaknesses, stresses, and strains in the structure or the foundations. The following well-known passage from On Liberty is a good example. No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard. (3, §1) What, if anything, is wrong with the orator’s behaviour? The example is a case of incitement, of course. I am asking; what, if anything, is wrong with incitement? It is very striking that Mill answers the question wrongly, even though the correct answer is

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The liberty of thought and discussion

there—right before his eyes, as it were—captured in the phrases of descriptive detail he uses when attempting to convey the volatility of the situation. Thus, the mob is ‘excited’, it is actually ‘assembled before the house of a corn dealer’, it is—moreover—a ‘mob’. Such details make it clear that the scene Mill pictures represents a case of the immoral and exploitative use of power; one in which vulnerable individuals are seduced into surrendering their autonomy to the control and manipulation of another. But, compelling though his use of descriptive language may be, Mill ignores such details in the awkward answer he actually gives. 3 Instead, he tries to handle the case by bringing into play a couple of highly unpersuasive distinctions. One is the distinction between action and opinion. Mill draws this in the sentence with which he introduces the example, and the example appears primarily designed to illustrate it. The move is unpersuasive because ‘opinion’ —by which Mill clearly means ‘the expression of opinion’ —and ‘action’ are not mutually exclusive categories. On the contrary, the expression of opinion is a form of action. It is fairly clear that it is the act of speaking against corn dealers in the circumstances described to which Mill objects. It is equally clear that, by contrast, he has no objection to the act of circulating an opinion through the press. The relevant distinguishing factor cannot be, as Mill’s sentence suggests it is, that out of the two acts the latter is not an act at all. Mill’s answer to the question of how ‘action’ relevantly differs from ‘opinion’ is cast in terms of a further distinction, mechanically and routinely drawn from utilitarian theory’s repertoire of standard responses. After the passage just quoted Mill continues, in the very next sentence, as follows: Acts of whatever kind, which without justifiable cause do harm to others may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. (3, §1) This is a corollary of the ‘very simple principle’ which Mill intended On Liberty to ‘assert’, i.e. that ‘the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection’, so much so that, ‘the only purpose for which power can be exercised

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The liberty of thought and discussion

over any member of a civilised community, against his will, is to prevent harm to others’ (1, §9). Mill appears to be suggesting that any action can be neatly categorised by its type into one or the other of two main groups, the ‘self-regarding’ and the ‘other-regarding’. The actions which fall into the former group are (supposedly) held by Mill to affect no one but the person who performs them, if they affect anyone at all. Those which fall into the latter group (supposedly) affect others too.4 Where the effect is adverse, the ‘very simple principle’ entails that the state is entitled to interfere, not otherwise. In line with this, Mill’s suggestion in the ‘corn dealer’ passage appears to be that only ‘action’ can be sufficiently harmcausing to sometimes warrant prohibition, and that ‘opinion’ never can. He is mistaken—clearly so, I should have thought—because just as delivering an opinion orally to an excited mob can be ‘a positive instigation to some mischievous act’ then so can ‘circulating that opinion through the press’. In some circumstances the result can be identical and, quite often, the latter is by far the more effective method of instigation. (Hindsight makes it clear that Mill had a tendency to underestimate the power of the headline. Imagine the possible effects of CORN DEALER STARVES POOR, were it to appear on the front page of a tabloid paper. Or, to borrow Mill’s other example, what if an issue of the New York Times were to bear the heading, PRIVATE PROPERTY IS ROBBERY? Isn’t there something to be learnt from the very improbability of this ever happening?)5 It isn’t just that the two distinctions—between ‘action’ and ‘opinion’ and between the ‘self-regarding’ and the ‘other-regarding’ —cannot do the work Mill wants them to do. The point is that you don’t have to be a genius to see that they can’t. Mill’s whole performance in these passages is inept. It is, as I put it, ‘awkward’. Such awkwardness on the part of a normally careful and meticulous philosopher stands in need of explanation, and we have it—or so I think—in the pre-eminence the classic defence accords to thought and discussion, construed in terms of a ‘seminar group’ model. That is the structural weakness of which the ineptness is a symptom. Of course, it is obvious that whatever the orator in the ‘corn dealer’ example is doing it is not behaving like a good seminar group member; presenting propositions for careful consideration by other rational agents, weighing the views of others in the balance, and so on. The trouble is that Mill can’t rule the orator out of court by just pointing to the difference and saying, in effect, ‘Look how badly

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The liberty of thought and discussion

this person is behaving! He isn’t acting as a rational person engaged in thought and discussion should!’ Mill can’t do this because, as I have been arguing, there is a great deal which he does want to allow, which doesn’t easily match the paradigm, but which he nevertheless wants to defend in terms of the same argument he applies to thought and discussion. The result is that, instead of recognising that the possibility of there being a diversity of cases, some of which match neither a ‘thought and discussion’ model nor that exemplified by the ‘corn dealer’ case too closely, he is forced to treat the latter as an extreme case; that is, as an exception to a general rule which would normally apply. The clue is the sentence containing ‘even’ —‘On the contrary, even opinions lose their immunity’, etc. And yet, Mill’s argument continues to wield enormous influence. (In the next chapter we go on to consider just how much.) None of this would matter so much otherwise.

FURTHER READING Most commentators draw attention to the connections Mill draws between the liberty of thought and discussion and the value of truth. For just one example, see Schauer (1982), especially chapter two. The ‘corn dealer’ example is discussed, albeit briefly, by Ten (1980:132ff), Gray (1983:105ff.) and Roger Crisp (1997: 190ff.). Gray’s book and J.C.Rees’s article, A Re-reading of Mill on Liberty’ (1960) contain the main ‘revisionary’ interpretations of Mill. By far the best account of Mill’s life is his own Autobiography (1989) [1873]. I regard this as one of the great classics of English literature.

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CHAPTER III

A case study

I have been claiming that Mill’s argument is influential enough to merit the accolade ‘classic defence’. It is about time that I offered some evidence to support this. In fact, there is more than one way to do so. A simple and straightforward method would be to present you with lines from On Liberty which have entered our language’s common stock of epigrams. Take this one, for example: The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. (Mill 1859:1, §9) Or these: There is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest: comprehending all that portion of a person’s life and conduct which affects only himself… (1, §12) The only freedom which deserves the name is that of pursuing our own good in our own way. (1, §13) If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (2, §1)

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A case study

All silencing of discussion is an assumption of infallibility. ( 2, §3) Such passages are familiar to people who have never heard of John Stuart Mill, as well as to those who have, but who could not give you a half-way adequate account of what his argument actually is. The next time a controversy over free speech or expression arises and is taken up by the media—as happens every so often— you can be confident that at least some of the phrases I have listed will appear in the columns of this or that journalist, drawn quite out of context and deployed in complete ignorance of their original point. Mill was not Shakespeare and On Liberty is not the Bible but it is, nevertheless, a bounteous source of resonating prose. Still, this way of attempting to demonstrate Mill’s influence has its drawbacks. For one thing, it relies on you, the reader, to recognise the passages for what I claim they are, and you may not. For another, I should like to do more than show that Mill is a source of aphorisms. I should like to illustrate how his way of thinking—the actual structure of his argument—remains a dominating influence on the way our perception of the world is structured, both within philosophy and outside it. Consider, then, that it was as recently as 1992 that Peter Singer, the well-known expert on ‘applied ethics’, felt able to assert with confidence that, John Stuart Mill’s arguments for freedom of thought and discussion are still essentially sound. (Singer 1992:88) In the earlier sections of this chapter I make a few observations on Singer’s acknowledged debt to Mill, and especially on the relationship between Mill’s argument, Singer’s, and the latter’s experiences at the hands of protesters in Germany. Later in the chapter I broaden the discussion to include what has come to be known as ‘the literature of Holocaust denial’. I shall return more directly to Mill’s argument, its structure and the presuppositions on which it is based, in the next chapter. However, I would not like you to think that the discussion on which I am about to embark here is any form of digression. On the contrary, I have written conscious of the promise I made, in chapter one, that I would try to deal with issues which anyone living in our own times is reasonably entitled

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A case study

to find addressed in a book called Free Speech. For, just as Mill’s version of the classic defence has tended to dominate thinking on freedom of expression from 1859 up until the present, that set of events which has come to be known as ‘the Holocaust’ has been a crucially formative influence on the late twentieth century psyche. It looks set to remain so into the twenty-first. The point is this. With the defeat of Germany in 1945 there came to an end an exercise in cold, irrational evil—mass murder on a scale never witnessed before, an industrial scale in fact. Not only that, but all this happened at the very heart of what everyone had thought of as the world’s most civilised continent. We are now living in the aftermath of those events, and controversy over the content of certain ideas and attitudes, together with the manner of their dissemination, is one of that aftermath’s more troubling dimensions. There will be many readers—my guess is the majority— who find themselves especially troubled through having to reconcile their horror of the Holocaust with the unyielding stand they would otherwise be prepared to make, Mill-style, on behalf of an unlimited liberty of thought and discussion. In a book like this, those readers have a right to find a discussion how the major argument for free speech can illuminate such matters, as well as indication of where it leaves things dark. There follows such a discussion. And— incidentally—I have placed it just here, in chapter three, because the main source of difficulty is, as we shall see, the classic defence’s prioritisation of the seminar group model.1

3.1 A GERMAN ATTACK ON APPLIED ETHICS The article from which I quoted a moment ago (with Singer’s remark that Mill’s argument is ‘still essentially sound’) is entitled, ‘A German Attack on Applied Ethics’. Here is how Singer goes on to describe his situation: Since 1989 I have been unable to lecture openly at universities and conferences in Germany, Austria and Switzerland. Courses based on the German translation of my book Practical Ethics have been repeatedly disrupted and have had to be abandoned. A conference organised by the European Society for the Philosophy

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A case study

of Medicine and Health Care had to be moved from Germany to the Netherlands, because the organisers felt unable to guarantee the security of the participants if the conference went ahead in Germany. The 15th international Wittgenstein Conference, scheduled to be held in Austria in August 1991, was cancelled because of objections to some of the invited speakers: myself, Professor George Meggle of the University of Saarbruecken, and Professor R.M.Hare. (Singer 1992:85)2 I am pretty sure that readers who are familiar with Singer’s work, but not with the events he describes, will be surprised to learn of them. They will concur with Singer in finding them ‘bizarre’ (his word), though perhaps not with the reason he gives for finding them so. This is that the driving force of the opposition comes ‘not, as it would in English-speaking countries, from right-wing, conservative and religious groups, but from the left’ (ibid.: 87). Certainly, British students of philosophy will know Singer mainly as the author of Practical Ethics (1993), a textbook designed to introduce the reader to some of the main problems and themes of ‘applied’ moral philosophy. The book takes the balanced, methodical approach one expects from a textbook, and you wouldn’t think it at all likely to arouse excitement or hostility. (It’s also likely that British readers will be even more surprised by the German objection to the presence of R.M.Hare, who comes across, if anyone does, as an embodiment of the respectable philosophical establishment. Cynics will note the irony in the contrast between the German reaction to Hare on the one hand, and, on the other, periodic attempts within Englishspeaking philosophy to disinter and sanitise the reputation of an old Nazi like Heidegger.)3 So how can it be that Singer’s very presence arouses such antagonism? The answer is that Practical Ethics contains a discussion of euthanasia, and in Germany and Austria ‘euthanasia’ is a word with sinister connotations and a sinister history. These result from the ‘euthanasia programme’ initiated by Hitler in 1939. Under it ‘70,000 people deemed “unworthy of life” —mainly children—were abducted and forcibly murdered’ (Eatwell 1995:119). As I am about to criticise one of Singer’s arguments, I ought to start by stressing that there is, in fact, no similarity between euthanasia as advocated by Singer and the ‘euthanasia’ practised

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A case study

by the Nazis. Singer is careful to define the euthanasia for which he argues as ‘the killing of those incurably ill in great pain or distress in order to spare them further suffering’ (Singer 1993:175).4 ‘Great pain or distress’ are, thus, his operative criteria, not—as with the Nazis— some arbitrary and racist definition of what it is to be ‘unworthy of life’. Moreover, and as Singer is right to emphasise, his argument ‘cannot be a threat to anyone who is capable of wanting to go on living, or even of understanding that his or her life might be threatened’ (ibid.: 345), and even the first edition of Practical Ethics contains a lengthy section in which Singer takes great pains to defend himself against ‘slippery slope’ objections. By contrast, for the Nazis ‘euthanasia’ was, in reality, a euphemism for something much worse. With all that said, however, I think the reader will find it easy to appreciate how wires can have become seriously crossed here.

3.2 A SHORT EXERCISE IN ‘DECONSTRUCTION’ Still, my subject is not euthanasia. Just at the moment it is Mill’s influence on Singer. As I shall now argue, the pattern of Singer’s thinking follows Mill’s quite closely. (Remember that I want to demonstrate a relationship of structure, so it isn’t enough just to point out that Singer refers to Mill.) I am tempted to say that Mill’s influence is even greater than Singer himself appears to appreciate. I could be wrong about that, though. After all, Singer is a philosopher and, therefore, someone whose acknowledgement of a debt to Mill will have been quite self-conscious. So, let me leave that suggestion to one side and turn to the passage which immediately follows Singer’s acknowledgement. Here it is: Academics should be the first to rally in defence of those whose freedom of expression is restricted, whatever we may think of the content of what is said, or of its ‘political correctness’ (Singer 1992:88–9) The passage may be short—it is only a sentence—but it is long enough to indicate just how closely Singer’s train of thought follows tracks laid down by Mill. The following step-by-step analysis is

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A case study

designed to illustrate the point. It will also help me to bring certain features of Mill’s argument, not so far considered, into prominence and to illuminate some of its shortcomings. (For want of a better word, I have called this particular section of my argument an exercise in ‘deconstruction’. However, I am sure readers will appreciate that the procedure I follow here is in line with my opening cartographical analogy. Here, I am—so to speak— ‘mapping’ the relation between the arguments presented by two different philosophers, as well as the relation between those arguments and events in the world.)

3.2.1 Why academics? To begin with, notice how curious Singer’s reference to ‘academics’ really is. Why academics? Why not politicians, the police, fire-fighters, television producers, journalists, film critics, or trade union officials? Why not night-club bouncers, even? For all such individuals, as for many others, it is conceivable that circumstances might arise in which it is open to them to take effective action to defend freedom of expression (supply your own scenario). So, shouldn’t they be the ‘first to rally’ when such circumstances arise? I do realise that Singer’s article was first published in The Journal of Applied Philosophy, and that most of his readers would, indeed, have been professional academics, but I think the fact is irrelevant. I don’t believe for a moment that, had he been writing for the Angling Times, he would have written, ‘People who are keen on fishing should be the first to rally’, etc., and, had he been writing for Campaign or Films and Filming, he would not have written, ‘Those involved in the media should be the first to rally’, etc. The answer becomes clear once you ask what special responsibility relevant to free speech academics might have. Academics do have a special responsibility for fostering and protecting one type of environment (the academy) in which intellectual debate can take place; that is, a duty to protect a certain type of activity for which ‘thought and discussion’ is a suitable label. The seminar is one arena in which that activity is practised. So, here we have a first illustration of how Singer’s argument follows the lines of Mill’s. (In connection with this, it is also worth remarking that without the seminar group model it would not even follow, necessarily, that those who disrupt Singer’s lectures are violating free speech, or even ‘the liberty of thought and discussion’. On the contrary, if—say— Scanlon is right to count ‘demonstrations, many musical performances, some bombings…and so on’ as ‘acts of

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A case study

expression’ on the grounds that they can be ‘intended to communicate…some proposition or attitude’, then Singer’s opponents could—conceivably—be counted as making a contribution to the debate) (Scanlon 1972:206).5

3.2.2 ‘Whatever the content’? Singer’s remark that we should rally to the defence of ‘freedom of expression…whatever we may think of the content of what is said’ also locates him securely within the tradition. This ‘whatever the content’ claim resonates with echoes of Mill’s that, ‘If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind’ (Mill 1859:2, §1). Mill apart, it is also reminiscent of other widely known and quoted dicta, such as Voltaire’s (alleged) ‘I disapprove of what you say, but I will defend to the death your right to say it’.6 Both the attitude and the rhetorical style are familiar. But there are difficulties here. For example, take the infantile expression of trivial statements. You only have to drop the rhetoric to see that this category includes plenty of opinions and attitudes which it wouldn’t be remotely worth defending in terms of the ‘whatever the content’ claim. Suppose I were to get a spray can and write ‘I LIKE GIRLS’ on a nearby wall. That would be an act of expression, would it not? Now suppose that someone—the caretaker—were to try to stop me. Would you rush to my defence? What if Voltaire and I were standing shoulder-to-shoulder and what if he were to turn to me and say, ‘I disapprove of your writing “I LIKE GIRLS” on that wall, but I will defend to the death your right to write it’? To the death, note. Wouldn’t he just have to be joking? Of course he would, and—further—it’s important to note that content counts as much as context here. It is no objection to the foregoing that my act of expression is ruled out of court simply by my having written a proposition on a wall rather than having advanced it in the course of a discussion. I might have made the remark in a seminar. As the discussion was progressing I might have interrupted with, ‘By the way, I like girls’. Even then, it would be ridiculous to rally in defence of my right to perform such an act of expression. On the contrary, if the point of a seminar is to facilitate the search for knowledge, then it can only be an impediment to that search if the discussion is permitted to become enmired in trivialities; and, of course, what goes for the seminar goes for the liberty of thought and discussion generally where that liberty is modelled on a seminar group

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A case study

paradigm. To generalise: a major difficulty encountered by the Mill/ Singer position results from the fact that the ‘whatever the content’ claim and the ‘seminar group’ model are, in fact, logically incompatible. The former forgets that there are ‘rules of the road for seminars’ and that these can be quite restrictive. Either the claim or the model must be abandoned. I am sure that readers will have guessed by now that my reason for raising the subject of infantile, trivial acts of expression is that such acts are quite often paralleled in the case of expressions of racist or fascist ‘opinion’. So, let us now turn to the question of whether the latter count as legitimate exercises of free speech, and therefore as deserving protection. (As I remarked earlier, the question is especially troubling to many people. If you are humane by nature you will hate and fear fascism, but if you are liberal in your sympathies you will also value freedom. As a result, you are likely to consider yourself the victim of a dilemma.) I have chosen to discuss Holocaust denial literature partly because phrases like ‘fascist opinion’ and ‘fascist speech’ are vague enough to disguise the true nature of the phenomenon. According to such literature the story of the Holocaust is just that—a story, a piece of pure fiction. For an example, take the following flat assertion, which is made in an article carried by the British National Party’s journal, Spearhead. Whatever the precise figure of Jews who died during World War II, none was the result of Zyklon B poisoning or any other kind of gassing. (Day 1987, cited in Griffin 1995:334)7 Or take the case of ‘ex-concentration camp guard’ Thiess Christophersen who, in his contribution to a book entitled The Auschwitz Lie, writes, In my whole stay at Auschwitz I never noticed a shred of evidence that could suggest to me the possibility of mass extermination through ‘gas chambers’. (Christophersen 1984:29–30, cited in Griffin 1995:332–3) There is more where that came from too. Here is how Christophersen continues:

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A case study

My lodgings were at Raisko, about three kilometres from the main camp…. Every day parcels arrived with luxury items for the internees from CARE (a North American aid organisation; if the Germans were criminal sadists who daily exterminated hundreds of thousands of Jews, what was the point of continuing to send this aid which only would have benefited the camp executioners?)…. No, the inmates of Raisko were not hungry. And when a new internee joined the camp undernourished and gaunt, after a few days his skin became silky smooth. (Ibid.) If the freedom to publish this type of material is defensible in the name of the liberty of thought and discussion, as characterised by Mill’s argument, it has to be possible to count it as a genuine contribution to debate, and for all I know Christophersen is so deranged that he actually believes himself to be making such a contribution. Nevertheless, I don’t see how he really can be—not when there is such an overwhelming weight of evidence for the Holocaust’s having actually taken place. That is the point. Consider: there are photographs and film (including photographs and film of gassings). There are the eye-witness accounts given by survivors, by ex-Nazis, and by the Allied soldiers who liberated the camps. These days, it is even possible to visit Auschwitz as a tourist, go round the museum and see the gas chambers. There you can see exhibits of belongings taken from the victims—shoes, toothbrushes, family suitcases—large piles of them. There is a mountain of women’s hair, 70 tonnes of it. People have been able to trace the fate of their ancestors to that place. Any lingering doubt must be dispelled by Serge Klarsfeld’s Mémorial de la déportation des Juifs de France (Klarsfeld 1978) which ‘gives the name, date of birth, nationality, and convoy number of all 75,721 Jews deported from France between 27 March 1942 and 22 August 1944’ (Lacqueur 1997). This tells you, for example, that Convoy One ran from Drancy, the main transit camp on the outskirts of Paris to Auschwitz and that it carried ‘1,112 men, mostly French nationals, none chosen for immediate gassing, 22 survivors in 1945’; that Convoy 46, on 9 February 1943 carried ‘1000 deportees, of whom 816 were gassed on arrival and 22 survived (15 men, seven women)’. It tells you that Convoy 82 left Clermont Ferrand on 22 August 1944, that it arrived at Auschwitz on 8 September and ‘that it contained three adolescent

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A case study

girls’ and that ‘39 men were selected for work’. All of this is based on evidence drawn from ‘documents of many sorts’, including Nazi records (ibid.) 8 It is against all such testimony that Christophersen writes that he ‘never noticed a shred of evidence’ that mass extermination was ever carried out. Remember that ‘the rules of the road for seminars’ only permit contributions which are controversial enough to be genuinely worth assessing against standards of rationality and evidence. Intellectually pointless denials of the plain obvious are, thus, ruled out. Therefore, ‘Holocaust denial’ literature is ruled out. If nothing else, such literature provides a good illustration of the inconsistency to which I referred earlier; that between the ‘whatever the content’ claim and the ‘seminar group’ model. An appeal to the former does not especially help Singer’s case because all it does is put him in bad company.

3.2.3 Political correctness If you believe that ‘freedom of expression’ should never be restricted, ‘whatever the content’ of what is said, you are likely to take a peremptory way with those who do want to restrict it, whatever the occasion. In Mill’s case, such dismissiveness shows up in his remark that, ‘All silencing of discussion is an assumption of infallibility’, upon which he brusquely elaborates with, ‘Its condemnation may be allowed to rest on this common argument, not the worse for being common’ (Mill 1859:2, §3). In Singer’s it is echoed —if not paralleled—by the imputation of ‘political correctness’ to his opponents. We are, thus, exhorted to rally in defence of those whose freedom of expression is restricted, ‘whatever we may think of the content of what is said, or of its “political correctness”’ (Singer 1992:88–9; my emphasis). Against this, recall Christophersen’s claim that the inmates of Raisko were not hungry and that, ‘when a new internee joined the camp undernourished and gaunt, after a few days his skin became silky smooth’ (Christophersen 1984; my emphasis). Now ask: what is the point—the function—of that sentence? There are, no doubt, many details on which Christophersen’s description could have relied and, as an ex-guard, he may well have had much of interest to relate. But the sentence singles out the one feature above all others which first strikes everyone when they initially become aware that the Holocaust happened, namely the starving, emaciated,

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A case study

‘undernourished and gaunt’ appearance of the internees so graphically depicted in film and in photographs. And not only does the sentence single this out, it singles it out by denying its very obvious existence. What is the point of doing that? With what strange, malign intention was the sentence written? I can only speculate. From my point of view, only two facts are clear. The first is that the dissemination of material such as The Auschwitz Lie has a role in the agenda of political groups who act in a certain historical context. The second is that it is not accurate to think of the activities of such groups primarily in terms of their making contributions to a great seminar in which the possible truth of certain propositions is disinterestedly discussed. I can only speculate, too, on the feelings such material—or even the knowledge that it exists—might arouse in anyone who actually experienced the Holocaust, or in such a person’s descendants. In any case, I am sure that you don’t have to be a hypersensitive paragon of ‘political correctness’ to find it troubling.

3.3 A NOTE ON ‘ASSUMING INFALLIBILITY’

3.3.1 The letter and the spirit of Mill’s objection Amongst other things, I have been arguing that we can be so sure of the fact that the Holocaust really took place that Holocaust denial literature cannot possibly be taken seriously. However, there is a very obvious and powerful objection to this argument, so I should consider it before I do anything else. According to that objection, I am ‘assuming infallibility’. I am sure that many readers will be wanting to press this charge against me, and I am still more sure that Mill would. As you will recall, this is the first of his four ‘grounds’ for an unlimited liberty of thought and discussion. He writes: First, the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course, deny its truth; but that they are not infallible. They have no authority to decide the question for all mankind and exclude every other person from the means of judging. To refuse a hearing to an opinion because they are sure that it is false is to assume

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that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common. (Mill 1859:2, §3; Mill’s emphasis. For Mill’s summary quoted in full, see above, pp. 3–4.) In the same vein, he comments later that, ‘if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true…. To deny this is to assume our own infallibility’ (2, §41). If Mill is right then I have been misguidedly offhand in my dismissal of Holocaust denial literature as ‘an intellectually pointless denial of the plain obvious’. The reason is that if no one is ever infallible everything is open to question. It would be impossible to deny the plain obvious because there would no such thing as ‘the plain obvious’ to deny. I believe that Mill is wrong, but that it is worth taking a little time to say why, as well as to resist the temptation to take a short, dismissive way with Mill’s infallibility claim. To take the latter, all you need to do is insist on keeping him to his strict, literal word and then produce a plausible counter-example; an example of an opinion’s being suppressed for some reason other than its (alleged) falsity. An example borrowed from Scanlon will serve to illustrate the point. Thus: ‘Suppose some misanthropic inventor were to discover a simple method whereby anyone could make nerve gas in his kitchen out of gasoline, table salt, and urine’ (Scanlon 1972: 211). It seems clear, as Scanlon claims, that ‘he could be prohibited by law from passing out his recipe on handbills or broadcasting it on television as he could be prohibited from passing out free samples of his product or putting it on sale at Abercrombie and Fitch’ (ibid.).9 In this case, the ‘opinion’ is suppressed, not because it is supposed to be false—on the contrary, it is all too likely that the misanthropic inventor really does know how to make cheap nerve gas at home— but because its dissemination would almost certainly be dangerous. And, if you don’t like the idea of describing a recipe as an ‘opinion’, it’s easy enough to reinforce the argument with examples which are less contentious on that score. For example, you are of the (correct) opinion that your host’s body odour is stale and faintly rancid, but a friend persuades you to refrain from saying so. (Tact prevents you from expressing an opinion that you know to be true.) Another example: you are of the opinion that your next-door neighbour

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should vote for your own favourite political party at the next election. However, the police prevent you from breaking into his premises while he is trying to sleep and haranguing him with the help of a megaphone. (The relevant law is grounded in a general respect for peace and quiet.) Another example: you are about to tell the children where they can buy drugs. (You know for sure where drugs can be bought.) But the teacher prevents you from telling them. Fanciful or not, it only takes one example of this type to refute Mill’s claim decisively. It is just plain false that all silencing of discussion, or opinion, is an assumption of infallibility. 10 However, although the objection serves to defeat Mill’s claim precisely as the claim is phrased, it would be wrong to leave things here and conclude that the case against him is thereby settled. That is why it is worth taking a little more time over the point. The trouble with the objection is that it leaves the spirit of his position untouched. To see why, note, for a start, that the conclusion the objection establishes can be specified more precisely. Precisely, the objection is that there are contexts in which the expression of an opinion is inappropriate, where there is therefore justification for suppressing its expression, but where it is false that the person suppressing it is assuming his or her own infallibility. Now note that quite a lot hangs on the ratio between the number and range of contexts in which the expression of an opinion is barred to the number and range of those in which it is not; that is, on the extent to which the former are counterbalanced by the presence of the latter. There are, roughly speaking, two possibilities. On the one hand, there is the type of situation in which the former are greatly counterbalanced by the latter. Where this type of situation prevails you cannot seriously claim that the liberty of thought and discussion is threatened (provided, of course, that the contexts which fall into the latter category match certain criteria—the criteria for something’s being a genuine arena of debate, and so on). Thus, while it may be inappropriate, illegal, or even impossible to break into your neighbour’s house and harangue him through a megaphone, the fact is irrelevant where there is a free press, open media, and so on. On the other hand, though, there is the type of situation in which there are very few, if any, opportunities for the expression of a given opinion. It is in situations of the first type that the suppression of an opinion need not amount to an assumption of infallibility. The objection just outlined demonstrates the point. But what of the second type of situation? Where an authority imposes a blanket ban

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(or an almost blanket ban) on the expression of an opinion, isn’t it then assuming its own infallibility? The next point to note is that it would be too quick and questionbegging to respond to this by extrapolating from the objection to this type of case. It is not an adequate answer to the question that governments and other authorities can have many different kinds of reason for suppressing the expression of an opinion—the need to maintain order, for example, or to prevent offence to some sensitive group—and that they are therefore not assuming their own infallibility when they suppress it. The trouble with this answer is that it ignores the fact that widespread ‘blanket’ suppression of opinion can amount to the assumption of infallibility whatever the authority’s intentions. And that is Mill’s real point, that silencing an opinion is in effect presuming ‘to decide the question for all mankind’ (2, §3). And, as Mill points out later in support of this, ‘The usefulness of an opinion is itself a matter of opinion—as disputable, as open to discussion, and requiring discussion as much as the opinion itself’. It follows that in arguments from usefulness, as in arguments from noxiousness, ‘the assumption of infallibility is merely shifted from one point to another’ (2, §10). Mill’s argument is very persuasive at this point.

3.3.2 Degrees of doubt and levels of fallibility In a moment, I shall give two reasons for thinking that he is, nevertheless, wrong. Let me preface them by remarking that we have to tread very carefully here. This is partly because nobody likes being told what to do and think by petty, officious authority. I am sure that all readers will empathise, as I do, with the stand Mill is taking against it. However, sympathy for Mill’s general attitude is one thing and the details of his argument are another. The former does not mean that you should neglect to question the latter. It is also because authoritarian regimes very often do exactly what Mill says they do, i.e. assume infallibility, especially when it comes to matters of morality and taste. The history of the twentieth century yields copious evidence to show that when the agents of such regimes are not behaving as murderous psychopaths, as in the case of the Holocaust, or with clunking inefficiency, like Stalin with his fiveyear plans, they tend to indulge themselves in displays of sanctimonious prurience of a fairly lunatic kind. An example is Franco’s banning of miniskirts, the bikini, and jazz, as is the similar

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set of measures taken by the Greek colonels under Papadopolous. In such cases, the authorities do just what Mill says they do, namely ‘assume that their certainty is the same thing as absolute certainty’ (2, §3). The point to bear in mind here, though, is not that comic opera dictators sometimes think themselves infallible but that the question is whether Mill is right to describe the silencing of discussion— ‘all’ of it—as necessarily involving the assumption of infallibility. That said, now note that there are, in fact, two beliefs (or levels of belief) in respect to which a suppressing authority might claim infallibility, and that we need to consider both when assessing Mill’s claim. There is the (first order) belief that p, and then—the usefulness of an opinion being itself a matter of opinion—there is the (second order) belief, or set of beliefs, about the merits and demerits of suppressing the expression of p (its usefulness, noxiousness, and so on). In the case of Holocaust denial literature this distinction cashes out as the distinction between the (first order) belief that the Holocaust never took place and the (second order) belief that permitting the expression of the first belief would have bad consequences; for example, that (to put it mildly) it would be deeply offensive and disturbing to Holocaust survivors and their relatives, that it would foster a nascent enthusiasm for fascism and racism. (Presumably these beliefs are held by the authorities in Germany and Austria, where the dissemination of Holocaust denial material actually is illegal.) 11 Now my first reason for questioning Mill’s claim relates to both beliefs but, I think, more to the first. It is that, sometimes, the only grounds there can be for doubting the truth of a proposition are so theoretical that, outside the philosophy seminar, there is nothing especially wrong with assuming your own infallibility. The point here is that even if it is the case that all beliefs are open to question, they are not all equally open to question or for the same reasons. Of course, there are plenty of questionable beliefs, especially where the evidence or the reasoning on which they are based is itself clearly open to question or interpretation. Examples are—say—the belief that such-and-such passages in Herodotus may have a factual basis after all, the belief that there are inconsistencies in Big Bang theory, the belief that God exists, or that God does not exist. But what of your ‘belief’ that the furniture surrounding you, and which you can see and touch, really exists, or your ‘belief’ that you have a body?

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Aren’t you absolutely certain of these facts, and isn’t your judgement in these cases infallible? Remember that if you are to genuinely doubt the truth of a proposition you have to have a reason for doubting it. (You don’t really doubt the existence of the table when you stare at it fixedly and repeatedly utter—mantra style— ‘It doesn’t exist. It doesn’t exist’.) One example of such a reason is Descartes’s ‘evil genius’ hypothesis. Here is the famous passage from the Meditations in which he outlines it: I shall suppose…that there is, not a true God, who is the sovereign source of truth, but some evil demon, no less cunning and deceiving than powerful, who has used all his artifice to deceive me. I will suppose that the heavens, the air, the earth, colours, shapes, sounds, and all external things that we see, are only illusions and deceptions which he uses to take me in. I will consider myself as having no hands, eyes, flesh, blood, or senses, but as believing wrongly that I have these things. (Descartes 1641:100) I would go further than I have and say that Cartesian scepticism is not just a reason for supposing that the furniture surrounding us may not be there. So far as I can see, it is the only reason. If I am right, it follows that Mill can only hold, as he does, that everything is open to question only if some form of scepticism is true. If scepticism is false, then there are truths of which one can be absolutely certain— ‘There is a table’, ‘there is a chair’ —and on which your judgement is infallible. It follows, as I am claiming, that sometimes there is nothing much wrong with assuming your own infallibility. Of course, scepticism doesn’t apply only to the senses. It can be applied to certain future events. (At time t, I decide to raise my arm and I am sure that I am just about to raise it. At time t1, half a second later, I raise it. Was I wrong to say at time t that I knew for sure that I was going to raise my arm at t1? Only if there is an evil genius and I really have no arm at all.) More to the point, it also applies to memory, including the memory of the Holocaust. So here, after all, we do have a reason for doubting that the Holocaust took place for, if there is any foundation for scepticism, it could be that absolutely nothing whatsoever has ever taken place. I think it is the only reason

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there can be for doubting the Holocaust which, like the existence of the furniture, is open to question only if Descartes was right. However, I think readers will agree with me it is not a reason which will hold much appeal for historians, for Holocaust survivors, or for the relatives of victims. Nor should it. As for my second reason for questioning Mill’s claim, this relates to the (second order) belief on the part of an authority that, were the expression of a given opinion to be permitted, such-and-such bad consequences would result. Mill holds that the authority assumes the mantle of infallibility if it suppresses the belief. Against this, I say that it need make no such assumption. It just has to have good reasons. To take the case in point, I have already remarked that it is safe to assume that the German authorities had good reasons for thinking that, by suppressing Holocaust denial material, they were helping to prevent some evil things from happening. This didn’t mean that they were necessarily assuming themselves to be infallible, though. To see why, suppose that they were wrong. Suppose that, one day, the dissemination of such literature were to be legalised in Germany and that, far from the anticipated resurgence of fascism, the only consequence were to turn out to be that a few silly old men found themselves exposed to public ridicule. Would this mean that the authorities had been wrong to suppress the dissemination of Holocaust denial literature? Of course not. Those authorities had very good reasons for thinking that bad effects would ensue, even though—as it turned out—nothing too serious happened. Also, Germany being a democracy, the authorities had a mandate to act as they did. That is what governments are supposed to do after all, and the question of their infallibility is neither here nor there. In conclusion. The belief that the Holocaust never took place is a belief for which there are no good grounds but for which there are plenty of reasons for suppressing (or, if not that, controlling). Suppressing it is not at all comparable with—say—preventing the Theory of Evolution from being taught in schools because it conflicts with the teachings of Genesis. In the case of evolution, there are good reasons for believing the theory and against suppressing it. (Its place in modern science, and modern culture, is such that depriving a child of the opportunity to grasp its elements represents a serious interference with that child’s education.) Therefore, Mill is wrong to condemn all silencing of discussion on the grounds that it is ‘an assumption of infallibility’.

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3.4 CONCLUSION AND POSTSCRIPT First, I am not arguing that Singer’s opponents are right and that his activities should be halted forthwith. On the contrary, were I asked I am fairly sure that I would take his side. My argument only goes to show that—despite his acknowledgement of a debt—Singer cannot really derive any help from Mill’s argument. As for ‘fascist’ literature of all sorts, there are—in fact—plenty of arguments for tolerating its existence. (People will realise how silly it is. You will only drive it underground. If you try to ban it, you will only draw attention to it, and so on.) Likewise, there are plenty of arguments for banning it. (It may attract followers. You will only encourage them. Look what happened in the 1930s, etc.) However, these must derive the conviction they contain from the realistic assessment of actual political events. They do not rest on invocations of abstract philosophical principle. Nor am I asking the reader to take sides. I am simply suggesting that the right way to assess the merits of Singer’s case is to categorise it accurately and take appropriate action on that basis. Is Singer’s defence of euthanasia pretty much equivalent to Christophersen’s denial of the Holocaust? Of course not! Is it, then, a genuine contribution to debate, an exercise of the ‘liberty of thought and discussion’? Well, it is that—but not only or ‘purely’ that; for Singer’s activities (lecturing, publishing, and so on) have a public dimension. Like Christophersen’s, they have the potential to cause offence, distress, and possibly much worse. Who knows? In a country with a past which, in Singer’s own phrase, ‘comes close to defying rational understanding’ (Singer 1992:87) it is hard for an outsider (Singer or myself) to judge. 12,13 To that, I will only add that neither Singer’s work nor Christophersen’s can be accurately described as ‘a magnificent puzzle’, ‘a thousand and one nights crammed into a week of evenings’, a ‘magnificent, challenging, novel’, all of which are phrases used by critics to describe Salman Rushdie’s The Satanic Verses (Rushdie 1988).14 But Rushdie’s work is something else again, and, if I have a ‘message’ for the reader at all, it is only to say this: here, on the one hand, are the arguments. Here, on the other, is the world. I leave it to you to judge how closely they match. Bear in mind, however, that eloquent though Mill’s aphorisms may be— ‘All silencing of discussion is an assumption of infallibility’, ‘If all mankind minus one were of one opinion’, etc. (Mill 1859:2, §3 and 2, §1)—they began life in the context of

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an argument. Treating them as mere slogans will only set you on the wrong road. Now for the postscript. Until I started writing this book, I had never heard of Thiess Christophersen. (I needed some examples of Nazi material, so I consulted Roger Griffin’s invaluable sourcebook of readings, Fascism.) Since then, I have encountered Christophersen’s name in a number of places. Just for example, in February 1996 Searchlight (the ‘international anti-fascist monthly’, which monitors the activities of the extreme neo-fascist Right), carried the following report:

Amnesty praises freedom for Nazis poster The Danish section of Amnesty International has awarded a prize to the advertising agency Saatchi & Saatchi for a poster with the slogan ‘Protect freedom of thought’ and depicting the veteran Nazi and Auschwitz liar and former SS man Thiess Christophersen as a victim of the violation of this freedom. The poster apparently so enthralled the human rights organisation that it saw fit to award Saatchi & Saatchi the prize for ‘best advertisement in the fight for freedom of thought’. The company chose 77-year-old Christophersen because of his appalling opinions and unsympathetic public image. According to the jury which gave the award, ‘the photograph of a known Nazi is a provocative choice which shows how freedom of thought affects Denmark and the Danes. Freedom of thought means that one must combat repulsive ideas, which is only possible if they can be expressed in the first place’. (Searchlight February 1996:15) It is quite clear that neither the Saatchis nor those seduced by them—like Amnesty—can have spared much thought for the classic defence of free speech or its implications. For one thing, the poster does not present us with an expression of fascist opinion. All we get is a photograph of an affable-looking old fellow (Christophersen). You could easily mistake him for your grandfather; that is, if you overlook the inconvenient detail that he is more likely to be the

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person who actually gassed your grandfather. To see the point, suppose that—instead of the photograph, but taking up a roughly equivalent amount of space—the poster had borne the slogan ‘Juden Raus!!’ and, beneath it, in smaller type, the words, ‘Protect Freedom of Thought’. (In that case, it would have genuinely represented the expression of an attitude in a proposition, but I hazard a guess that the Saatchis would never have considered publishing such a poster.) There can be few more graphic illustrations of how Mill’s own argument can itself degenerate into ‘dead dogma…a mere formal profession, inefficacious for good, but cumbering the ground’ (Mill 1859:2, §43).

FURTHER READING After its publication of Singer’s initial piece, the Journal of Applied Philosophy subsequently published a number of objections and counter-objections to his argument. See the articles by Glock (1994), Teichman (1994), and Kleinberg (1995). The same journal has also published an interesting volume which contained a number of articles which reflected on the relationship between philosophy and the events of the Holocaust. See the articles by Freeman, Steiner, Lesser (all 1995) and Geras (1995a). Otherwise, material on the Holocaust is so plentiful that it is hard to single out anything for special mention. However, as I have remarked in a note, Roger Griffin’s Fascism (1995) is a valuable sourcebook. My criticism of Descartes, that genuine doubt requires a genuine reason for doubt, is—I think— a familiar one. Versions of it are made by most commentators. See, for example, Williams (1978), chapter two. For my money, though, the most readable remains Bouwsma (1949).

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CHAPTER IV

Truth and consequences

The discussion so far has centred around the conclusion Mill’s argument is constructed to defend, with its prioritisation of what I have called ‘the seminar group model’. Just to summarise the position we have now reached, it seems that Mill’s argument for the liberty of thought and discussion, construed as a defence of free speech, is the more convincing the more a situation to which it is applied resembles the model. However, there are many situations which clearly give rise to free speech issues of one sort or another, but which do not match the model especially closely—we have now considered quite a few—and the adequacy of Mill’s argument is thus called into question. (This is not to say that there are no situations to which the model can be applied, but more of that later.) We now move on to the crucial step by means of which he hopes to establish that conclusion. This is summarised as the second of the four ‘grounds’ on which Mill bases his case for freedom of opinion. As you will recall, this is stated as follows: Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of the truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. (1859:2, §42) The third and fourth grounds can be treated as supplementary riders to this as each asserts, in its own way, a relation between the free play of argument and the discovery of truth. As I am sure you will also recall, Mill holds that, ‘even if the received opinion be… the whole truth; unless it is suffered to be, and actually is, vigorously

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and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds’ (third ground); and that, ‘the meaning of the doctrine itself will be in danger of being lost or enfeebled…the dogma becoming a mere formal profession’ (fourth ground) (2, §43). (We have already discussed the first ground, according to which all suppression of opinion is an assumption of infallibility, in connection with Mill’s prioritisation of the seminar group model. You will find Mill’s summary of his argument quoted in full on pages 3–4, above.)1 In short, we are now moving on from Mill’s conclusion to consider the steps which constitute the structure of his argument. Even if you didn’t know it already, you won’t be surprised to learn that Mill’s argument has been exposed to a great deal of adverse criticism by now. However, that criticism has made the present chapter more, rather than less, necessary. As I shall try to show, the argument’s weaknesses lie less where critics have claimed to locate them than elsewhere. In a like manner, its strengths have been less appreciated than they deserve to be, and I shall be trying to show that too. I think the latter point is worth stressing, because it seems to me that I am in danger of being misunderstood. I have already said a great deal in criticism of Mill, and there is more to come. This could leave some readers with the impression that I am only interested in destroying Mill’s argument. But this is not so. On the contrary, my aim is to gain a true appreciation of it. So, this is not an exercise in demolition but a rescue operation. In this chapter I shall concentrate on that dimension of Mill’s argument which has become the feature most likely to attract adverse criticism over recent years. I mean its consequentialism. There has long been a prevalent consensus according to which consequentialism is seriously weakening to any ethical position, and my aim is to rescue Mill’s case for the liberty of thought and discussion from the preconceptions this will have engendered. In chapter five I ask whether Mill can successfully account for the existence of a right to free speech. The relevant preconception here is the widely held assumption that no consequentialist argument can successfully account for rights. Against this, I shall argue that Mill’s account of the right to free speech is rather more satisfactory than that yielded by the anti-consequentialist alternatives.

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4.1 THE ANTI-CONSEQUENTIALIST CONSENSUS There is no getting away from the fact that Mill’s argument is consequentialist in the sense that it purports to establish that the toleration and protection of the liberty of thought and discussion has a certain good consequence. That consequence is a likely increase in the number of propositions known to be true. Accordingly, Mill claims that if a true opinion is suppressed, humanity is ‘deprived of the opportunity of exchanging error for truth’. If the opinion is false, we supposedly lose, ‘what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error’ (2, §1). As we noted a moment ago, Mill claims that—by contrast—where there is no suppression of opinion, propositions known by some become available for knowledge by all. I shall call this ‘an increase in the truth supply’ for short. The argument’s consequentialism certainly leaves it open to criticism. There is no getting away from that either. But what criticism exactly? In raising the question we come face-to-face with a major source of potential confusion. The trouble is that On Liberty is only one of Mill’s achievements. He was also a leading figure in the Utilitarian movement. More than that, he easily deserves the reputation of having been the foremost utilitarian philosopher ever to have lived. Now, utilitarianism—the general, all-embracing, ethical theory which identifies the greatest good with the greatest happiness—is itself consequentialist and, again, it is not just any consequentialist ethical theory but the most prominent and influential ever devised. This can lead to an understandable assumption that any weaknesses there may be in the argument of On Liberty are, in the main, specific reflections of weaknesses in utilitarian theory at a more general level. Add the consideration that consequentialism and utilitarianism have come in for a bad press over recent years—anyone remotely familiar with developments in political philosophy will be only too well aware of the fact—and it becomes easy to see why On Liberty’s virtues have tended to go unappreciated. As one leading commentator, John Gray, has put it, there is a consensus, a ‘received view’ that, ‘Mill’s enterprise in On Liberty was foredoomed to ignominious failure’ (Gray 1983:2). According to that consensus, it is because ‘Mill is committed to viewing the Principle of Utility as framing the terms within which

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every moral question is to be answered’ that it follows logically that Mill ‘can have no use for a principle other than the Principle of Utility’ (ibid.: 3). On the view Gray describes, a ‘liberty principle’ would be just such an extra principle. Any utilitarian ought to treat it as logically redundant. Likewise, if the consensus is right, a principle protecting thought and discussion would be equally logically redundant, and Mill’s argument should be dismissed accordingly.

4.2 THE OBJECTIONS FROM INTEGRITY AND NEGATIVE RESPONSIBILITY But the consensus is misguided. That is the first point I should like to establish—that, contrary to the consensus, it is possible to divorce Mill’s ‘thought and discussion’ argument from its utilitarian context and consider it independently. To illustrate it, I shall take two objections to which utilitarian theory is, or has been thought to be, prone. One of these I shall call ‘the objection from integrity’ and the other, ‘the objection from negative responsibility’, and I shall argue that, whatever their relevance to utilitarianism generally, Mill’s thought and discussion argument can survive them. Versions of both objections are advanced by Bernard Williams in his influential essay, ‘A Critique of Utilitarianism’ (Williams 1973:75–150). I shall concentrate on those versions.

4.2.1 The objection from integrity According to this objection, there are moral phenomena which utilitarianism cannot accommodate within its consequentialist framework. Because such phenomena are so integral to morality it is held to follow that utilitarianism cannot be sustained. Consider the following example: George, who has just taken his Ph.D. in chemistry, finds it extremely difficult to get a job. He is not very robust in health, which cuts down the number of jobs he might be able to do satisfactorily. His wife has to go out to work to keep them, which itself causes a great deal of strain, since they have small children and there are severe problems about looking after them. The results of all this,

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especially on the children, are damaging. An older chemist, who knows about this situation, says that he can get George a decently paid job in a certain laboratory, which pursues research into chemical and biological warfare. George says that he cannot accept this, as he is opposed to chemical and biological warfare. The older man replies that he is not too keen on it himself, come to that, but after all George’s refusal is not going to make the job or the laboratory go away; what is more, he happens to know that if George refuses the job, it will certainly go to a contemporary of George’s who is not inhibited by any such scruples and is likely if appointed to push along the research with greater zeal than George would. (Williams 1973:97–8)2 The relevant question is not, ‘Should George take the job?’ (Williams’s example is not a challenge to come down on one side or the other, nor to offer George any kind of advice.) Rather, the point is to leave us in no doubt that George is placed in a genuine moral dilemma (hence the wealth of detail in Williams’s description). Against this, if the picture of the moral world painted by utilitarian ethical theory were correct, George would have no problem at all. That is because, when the likely outcomes of the various alternatives open to George are calculated, and where the criterion for selecting options is utility maximisation, taking the job is guaranteed to come out as the most preferable option. (Remember that, if George doesn’t take it, his less scrupulous, more zealous, contemporary will. It follows, paradoxically enough, that by taking the job George would be helping inhibit research into germ warfare.) So, here is the objection: if George is faced by a real moral problem, and if utilitarianism entails that he isn’t, it follows—as claimed— that there is a moral phenomenon for which utilitarianism cannot account. As readers familiar with this area will realise—and there will be many such readers—Williams is raising a specific version of a more general difficulty. In Williams’s version, the problem is reflected in the fact that it would be perfectly morally legitimate for George to turn the opportunity down, giving as his reason—for example— ‘I am just not the sort of person who could do a job like that’. It is, thus, George’s integrity for which utilitarianism appears unable to account here. As it happens, Williams goes on to connect this failing

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with one of utilitarianism’s most salient general characteristics, namely its assumption of a dispassionate, universal, perspective from which to view the moral world. The assumption is manifested in, for example, the way utilitarianism strives to weigh each preference equally in the balance, regardless of source. (Bentham is careful to count each as one and no one for more than one.)3 As Williams states, for the utilitarian, each outcome ‘goes into the calculation of consequences along with any other state of affairs accessible to me’, with the result that ‘for consequentialism, all causal connections are on the same level’ (ibid.: 94). It follows— or so Williams claims—that consequentialism is unable to distinguish between my doing some action in order to bring about some consequence and someone else’s doing it. Accordingly, his conclusion is that ‘utilitarianism cannot understand integrity’ because ‘it cannot coherently describe the relation between a man’s projects and his actions’ (ibid.: 100). I shan’t pursue Williams’s argument any further. That won’t be necessary. Nor will it be necessary to examine how parallel objections to utilitarianism can be framed with reference to other moral phenomena (though they undoubtedly can). So far as the present discussion is concerned, the only question we need ask is this: can an objection, parallel to Williams’s ‘integrity argument’, be raised against Mill’s consequentialist defence of the liberty of thought and discussion? And the answer is that it can’t, because the ‘George’ case and the case of thought and discussion are not strictly analogous. The difference is that, whereas Williams’s argument focuses on the plight of a given individual, George, Mill’s sets out to defend a framework of institutions and practices, those which make it possible to exercise ‘the liberty of thought and discussion’, and within which individuals can exercise that liberty if they so wish. Like many a tragic existentialist hero, George is forced to choose. Should he sacrifice utility—in the shape of his wife’s health and his children’s well-being—or should he compromise his integrity? By contrast, Mill only needs to suppose that, where the right framework exists, the number of people who actually choose to exercise the liberty of thought and discussion because they want to will be sufficiently high to maximise the relevant consequence. There need be no moral pressure on anyone to actually engage in thought and discussion and no conflict of obligations—no one is forced to think or discuss— so no one’s integrity is threatened. (Similarly, if your local authority

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were to construct a public swimming pool in your area, your integrity would only be compromised in the unlikely event of your being placed under an obligation, or forced, to use it, even though you have good reasons of your own for not going swimming.) It follows—though with a qualification—that Mill’s thought and discussion argument is not open to the ‘integrity objection’. For the record, the qualification is that the conclusion requires the assumption that the number of people who are willing to, and do, avail themselves of the opportunities provided by the framework is sufficiently high to yield Mill’s preferred outcome. It is, I suppose, conceivable that situations can arise in which the assumption is actually false. For example, it could happen that a problem is so urgent, and the number of individuals qualified to deal with it so few, that they have to be pressed into coming up with a solution, sometimes at a cost to their integrity. However, it seems to me that the assumption holds almost always. It is so reasonable, and the exceptional case so rare, that the conclusion remains intact even with the qualification. (Here is a possible scenario: a planet has come adrift from its orbit and is about to fall into Arizona; the aliens are about to land; the icecaps are warming up and enormous peopleeating dinosaurs are lumbering back to life—or whatever. Only four or five scientists will know what to do, but some have retired to Trappist monasteries, whereas others just want to be left alone to spend time with their families. It is only if they are forced to come up with a solution that the world has a chance of being saved…, etc. You know the sort of thing. See what I mean about the exceptional case being rare?)

4.2.2 The objection from negative responsibility The fact that Mill is primarily concerned to defend a practice or framework means that his argument is also proof against another objection Williams raises against utilitarianism generally. According to this, utilitarianism attaches too much weight to ‘negative responsibility’, by entailing that ‘if I am ever responsible for anything, then I must be just as much responsible for things that I allow or fail to prevent, as I am for things that I myself, in the more everyday restricted sense, bring about’ (Williams 1973:95). Against this, he urges that there is a ‘distinction between my killing someone, and its coming about because of what I do that someone else kills them’ (ibid.: 117). This seems right. It is true, both that a moral line

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is often drawn between ‘negative’ and ‘positive’ responsibility and that utilitarianism is less able to account for the fact than it ought to be. (A person is drowning in a rough and stormy sea. You could try to save that person, but only at some risk to yourself. Williams’s point is that you are less morally responsible for the drowning person’s plight than you would be if you had pushed that person into the water yourself, and that utilitarianism is unable to account for the difference in responsibility.) As with the integrity objection, the problem here is, I am sure, connected with utilitarianism’s apparent inability to distinguish between a person’s own projects and those of others. But it should be clear enough that no objection along such lines can be formulated against Mill’s ‘thought and discussion’ argument. The point is that to support a framework is to concern oneself with the actions of others in an indirect way, at one remove, as it were. Where the framework leaves individuals free to engage in thought and discussion if they so wish—and as they so wish—if anyone is to be held directly responsible for the immediate results of acts of expression it can only be the individuals themselves. But in Mill’s scenario the protectors of the framework can only be involved less directly, at a secondary level. Just in case that isn’t clear, an analogy should help. I am saying that those who uphold and protect a framework within which individuals can exercise the liberty of thought and discussion are responsible for what people do with that liberty in the same way, and to the same degree, that those who devised and those who occasionally revise the rules of football are responsible for specific goals scored by specific footballers on specific occasions. Williams’s argument looks the more persuasive the more you narrow your focus on to situations exemplified by the latter; that is, on to situations in which it can, or should be, foreseen that doing, or refraining from doing, a specific action will have a certain consequence. The ‘drowning person’ case is of this form. Thus, if you push someone into a rough sea, if you don’t realise that person is likely to drown then you should. Likewise, if you don’t attempt to rescue a person who has been pushed in by somebody else, you should equally well realise that he or she is in danger of drowning. (Williams’s criticism is that utilitarianism implausibly places actively drowning someone and passively letting them drown on the same moral level.) Similarly, the footballer who scores (or fails to score) a goal can be held

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responsible—praised (or blamed)— because he was in a position to assess the state of play and acted (or failed to act) accordingly. But in the present case we are dealing with a situation in which there are, so to speak, degrees or levels of responsibility. If the responsibility is shared between the rule-maker and the player, that can only be because the former has had a hand in defining what counts as ‘scoring a goal’. Because the rule-maker will have no detailed knowledge of future contingencies, he or she cannot possibly be held responsible for the fact that on such-and-such an occasion such-and-such a player would score or fail to score, play well or badly, commit a foul, and so on.4 Therefore, it is inappropriate to ask whether the rule-maker is positively or negatively responsible for a specific goal on a specific occasion because his or her relationship to the individual act of scoring is not of the right sort. It follows that there is no way—or, at least, no obvious and clear way—of applying Williams’s objection from negative responsibility to Mill’s thought and discussion argument. (By the way, this is not to say that rule-makers, legislators, managers, and others can never be held responsible for the consequences of their decisions. Far from it: entire legislative frameworks can be intrinsically evil, and there are general effects of managerial decision-making which can be foreseen. Unless this were so, Eichmann would be innocent. However, we can take it that there is nothing intrinsically evil about the rules of football or those which define a framework for the practice of thought and discussion.)

4.2.3 Separating the argument from its context So, Mill’s defence of the liberty of thought and discussion escapes at least two of the major objections to which utilitarianism is frequently held to be open (and I am sure that it would be possible to supply still further illustrations of the point if necessary). Why should this be? The underlying reason is this: out of the two—the specific ‘thought and discussion’ argument on the one hand, and the allembracing ethical theory on the other—the former requires a relatively weak commitment to consequentialist reasoning. This means that it is consistent with other arguments for the liberty of thought and discussion, including non-consequentialist ones. To succeed, it only needs to persuade you that the exercise of the liberty really has the consequences Mill claims for it and you don’t have to

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be persuaded that nothing else counts. (It is true enough that, in On Liberty, Mill insists that he regards ‘utility as the ultimate appeal on all ethical questions’, but you don’t have to go along with him on this to be convinced by the argument.) (1859:2, §11; my emphasis). By contrast, the commitment to consequentialist reasoning required by utilitarianism, the fully-fledged ethical theory, is more fundamental. In his essay Utilitarianism, Mill describes the relationship between his ‘official’ philosophy and its first principle as follows: The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. (Mill 1863:2, §2)5 This states that whether an action is right or wrong depends only on its tendency to bring about a given consequence (the greatest happiness), that utility is, in Mill’s phrase, ‘the ultimate consideration’. But one needn’t accept this to accept the ‘thought and discussion’ argument. Therefore, we should separate it from its utilitarian context and consider it entirely on its own merits.

4.3 ASSESSING THE CONSEQUENCES 4.3.1 Where the phrase ‘thought and discussion’ is widely construed So the only question which need detain us is this: is Mill right to think that where the exercise of the liberty of thought and discussion is increased, there is (or is, at least, likely to be) a corresponding increase in the number of propositions which become known to be true. Let us put this more formally and ask, is the following claim true or false? Claim C: An increase in the rate of exercise of the liberty of thought and discussion causes an increase in the supply of truth. Well, it depends on how you construe the claim. Here—once

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again—we encounter difficulties which result from Mill’s prioritisation of thought and discussion by treating a ‘seminar group’ model as a paradigm for free speech generally. Prioritising the model amounts to treating Claim C as equivalent to the following (where ‘act of expression’ is broadly construed as anything one might reasonably want to count as an exercise of free speech): Claim C1: An increase in the rate of performance of acts of expression causes an increase in the supply of truth. It would be hard to demonstrate, decisively and once and for all, that claim C1—Mill’s thesis widely construed—is false. However, it is pretty clear that there is no good reason for believing it to be true. Consider the following example: On Sunday, October 12, 1975, members of the National Socialist White People’s party, under the leadership of local chairman Frank Collin, held a rally in Marquette Park on Chicago’s Southwest Side. The park, situated in the heart of a white ethnic neighborhood, had been the scene of Nazi activity for several years. On a number of occasions Collin had been prevented by city authorities from speaking in the park, but a decision of the U.S. Seventh Circuit Court of Appeals in 1972 finally permitted him to do so now. Now, in 1975, the area was beginning to change, with black Chicagoans moving closer to it. Collin and his followers, some dressed in Nazi uniforms and carrying signs reading ‘White Power’ and ‘Beware Nigger’, decided to conduct a protest march from the park into a black neighborhood about a dozen blocks away. There some counterdemonstrators were waiting, one person carrying a sign reading, ‘Smash the Nazis’. Approximately eight blocks short of their target, Collin and his marchers were warned by police not to cross the street and proceed any further. When Collin disputed the police order, he was arrested and charged with disorderly conduct. Soon thereafter, twenty to thirty other demonstrators were also arrested. (Haiman 1976:59) The source for the quotation is a casebook, edited by Franklyn

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S.Haiman, and entitled Freedom of Speech. (By the way, I promise to make this the last example of Nazi activity to which I shall appeal for some time. I don’t want to focus the discussion too narrowly. The trouble is that once you start looking, this type of example is depressingly easy to come across.) But is freedom of speech really at issue here? Haiman thinks it is, and I am sure that— in this—he is not alone in jumping to conclusions. He goes on to write that, ‘Freedom of speech and the preservation of public order sometimes are, or appear to be, in conflict with one another’ (ibid.). A little later, he raises the question, ‘May certain areas or institutions be placed off limits to freedom of speech?’ (ibid.: 60). In this way, he represents the situation described as confronting us with a dilemma, remarking that ‘the questions raised are troublesome’ (ibid.: 59). Well, so they may be, but not if Mill’s central argument is right. If there is a possible defence of the activities Haiman describes it must lie elsewhere for, as his description makes clear, not much thinking took place, hardly any discussing, and no one seems to have come near to reaching any sort of truth. (So the considerations which apply here are similar to those which apply in the case of the ‘Holocaust denial’ material discussed earlier. Mill himself would have shown far less hesitation in making an exception of this case. It parallels his ‘corn dealer’ example and, as we have already seen, he explicitly prohibits the ‘handing about’ of an opinion among a ‘mob in the form of a placard’.) (1859:3, §1). So much for Mill’s main argument. What of the related points he makes? Could it be true that a person will hold a view ‘in the manner of a prejudice’ unless that person is actually allowed to exercise and give vent to prejudice, for example by carrying a banner bearing the slogan ‘White Power’? It’s hard to see how it could. It would seem more reasonable to think that Nazi rallies foster ‘dead dogma’ at the expense of ‘living truth’ (Mill’s phrases: 2, §22) more than they initiate the reverse process. Nor is it obvious that silencing the ‘discussion’ here would necessarily involve assuming one’s own infallibility. Clearly, nothing Mill says on behalf of the liberty of thought and discussion applies to the events Haiman describes. I don’t want to dwell on the example for too long, but it is important to be clear about where all this leaves Claim C1. I realise that it is practically a cliché that consequentialism, resting as it does on the assertion of contingent connections, is open to refutation by the production of counter-examples. Notice, however, that Haiman’s example is not, by itself, sufficient to falsify the claim. This is

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because C1 asserts the existence of a tendency. Had the claim been prefaced by the universal quantifier—i.e. had it stated that for every act of expression (‘act of expression’ being widely construed) there is a corresponding increase in the truth supply, Haiman’s example would have been sufficient to demonstrate its falsity beyond a shadow of doubt. However, tendency claims are not like that, for the truth of the claim that acts, or events, of a given type have a tendency to produce a given outcome is consistent with there being individual acts of that type which do not. For instance, the proposition that there is a tendency for heavy smokers to die earlier than non-smokers is not falsified by the fact that some heavy smokers live well into their old age. Or again, the fact that space probes have been dispatched to other planets, beyond the dominance of Earth’s gravitational pull, does nothing to defeat the claim that what goes up is more than a little likely to come down. However, in these cases, we have good reasons for thinking ourselves presented with examples of general rules to which there are exceptions. There is statistical evidence to draw upon; the correlation between smoking and the likelihood of contracting cancer, or the consideration that if you were to spend a long period throwing objects of various sorts upwards all of them would come down again. At a more theoretical level, there are biochemical explanations connecting smoking with cancer, there is the law of gravity and the knowledge that there is very little on Earth which can withstand its gravitational pull. Such facts permit us to think in terms of there being norms to which longlived smokers and the behaviour of space probes are exceptions. By contrast, in the case of Claim C1 there is no reason for treating events such as those described by Haiman as exceptions to a general rule. There are some cases, like his example, which serve to disconfirm the claim and you can be sure that there are others which serve to confirm it. But there is no apparent pattern to their distribution and it follows, as I am claiming, that although claim C 1 cannot be falsified, there is no good reason for believing it to be true. I should just add that there are similar reasons for thinking that if claim C1 is a true representation of Mill’s position he cannot be defended with the argument that short-term sacrifice is justified by long-term benefit. The toleration of the public exhibition of bigotry and suchlike nasty activities could (I suppose) be justified on the grounds that the cost has to be borne for the sake of a greater good which will eventually be realised, but only if it can be demonstrated that the greater good will in fact ensue, or at least that it is likely to

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(i.e. only if claim C1 is a true tendency claim). However, Mill can offer no such reason (or, at least, no reason apart from what is in question, his argument itself). Any attempt to defend him with an appeal to the long term must therefore fail.

4.3.2 Where the phrase ‘thought and discussion’ is narrowly construed What happens to Mill’s argument where the reference of ‘thought and discussion’ is narrowly confined to participation in collective activities which closely resemble the ‘seminar group’ paradigm? In short, what if we construe Claim C as equivalent to Claim C2? Claim C 2: An increase in the rate of participation in seminar group-type activities causes an increase in the supply of truth. This interpretation of Mill’s argument yields a completely altered picture. At least, that is how it seems to me because, as it happens, I believe that claim C2 is true. I should spell this out. Here, then, is what I do and do not believe. First, I do not believe that ‘thought and discussion’ —the collective evaluation of conflicting points of view by individuals whose aim is to seek truth—is the only viable method for the pursuit of that aim. I am sure that history contains many an example of success resulting from the solitary pursuits of the lone genius. I am only saying that collective discussion is one more than usually reliable method. Secondly, I do not believe that truth will always be the outcome, even where truth is the aim. (Something must depend on the attitudes of the participants, and on their capacity for rational thought. When the far Right hold ‘seminars’ to discuss ‘Holocaust denial’ literature, truth might not be the outcome even where truth is what the participants sincerely believe themselves to be pursuing.) Thirdly, although I do not believe that claim C2 is true for all cases, I do not believe, either, that the cases for which it does not hold are counter-examples sufficient to defeat it. On the contrary, such examples are exceptions to a rule which holds in general. So, how am I to demonstrate any of this? Here I am embarrassed by a difficulty which results from the fact that claim C2, being causal, is contingent. The fact is especially embarrassing for any philosopher attempting to assess Mill’s consequentialist argument because it

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means that, in assessing it, we must step, as it were, outside philosophy and test it against the real world. Pure reason alone cannot be enough. However—‘pure’ reason apart—I can appeal to your judgement and good sense by offering a few supporting considerations. For example, there is the consideration that ‘thought and discussion’ is, as already noted, an artifice, a game played according to ‘the rules of the road for seminar groups’ with the goal of reaching truth. Of course, participants are likely to be conscious of and critical of their own procedures, and modify them accordingly, and unless one over-pessimistically assumes extraordinary maladroitness on their part, one has to assume that the probability of their arriving at knowledge is increased. This means assuming that C2 is true. Again, there are well-embedded, widespread, and long-standing practices which would lose much of their point unless claim C2 were true. The conduct of research, collectively, in research institutes is an example. Another is the long-standing and widespread practice of concentrating the young in centres for their higher education, rather than attempting to educate each in isolation. Why do that unless claim C2 is true? In conclusion, if I am right, there are ‘supporting considerations’ which suggest that C2, unlike C1 is a genuine tendency claim, and a true one at that. Further, the existence of such considerations suggests an argument for C2 which resembles the ‘rule of thumb’ argument Mill offers in Utilitarianism against the objection that ‘there is not time, previous to action, for calculating and weighing the effects of any line of conduct on the general happiness’ (Mill 1863:2, §22). Mill’s answer is that ‘there has been ample time, namely, the whole past duration of the human species’, during which ‘mankind have been learning by experience the tendencies of actions’ (ibid.). Shortly afterwards, he adds: There is no difficulty in proving any ethical standard whatever to work ill, if we suppose universal idiocy to be conjoined with it; but on any hypothesis short of that, mankind must by this time have acquired positive beliefs as to the effects of some actions on their happiness; and the beliefs which have thus come down are the rules of morality for the multitude, and for the philosopher until he has succeeded in finding better. (Ibid.)

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I suggest that what Mill says of ‘any ethical standard’ is true for claim C2, i.e. Mill’s defence of the liberty of thought and discussion with the phrase ‘thought and discussion’ narrowly construed. If I am right, the consequentialist elements of Mill’s argument render it less prone to collapse than the contemporary consensus might have led us to anticipate.

4.4 A NOTE ON THE ‘FREE MARKET IN IDEAS’ Finally, since the subject of the present chapter has been the structure of Mill’s argument, this is an appropriate juncture at which to comment on Mill’s use of the word ‘collision’. The word recurs throughout his second chapter, as in ‘it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied’ (Mill 1859:2, §42; my emphasis). My comment is that, in so far as there is a root metaphor at work in Mill’s argument, it owes less to Adam Smith or David Ricardo than it does to Isaac Newton. I mean, for example, that Robert Paul Wolff is wrong in his assertion that ‘The root metaphor in all these arguments is of course that of the free market of ideas’. According to Wolff, it is Mill’s view that ‘Just as an unfettered competition among commodities guarantees that good products sell while the bad gather dust on the shelf, so in the intellectual marketplace, the several competing ideas will be tested by us, the consumers, and the best of them will be purchased’ (Wolff 1968:11). This picture misrepresents the language Mill tends to use. In a market context, individual traders strike bargains and do deals but, for Mill, truth is less often portrayed as the outcome of negotiation (as a ‘market outcome’) than as the resultant of ‘collisions’. People may ‘throw ideas around’ and ‘bounce them off each other’ but—for Mill— they don’t appear to trade in them. In terms of the metaphor, ideas resemble the ‘hard massy particles’ of which Newton thought matter was composed more than they do commodities. Truth is—so to speak—the vector sum of numerous collisions. In a way, it doesn’t matter much. There is no more reason for thinking that the force resulting from a number of collisions will move us in a desirable direction (as opposed to just any direction) than there is for believing that a market outcome will necessarily turn out desirable as measured in terms of some market-independent

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standard of value. Apart from that, whatever Mill’s ‘root metaphor’ may be, within the context of his argument the real work is done neither by the ‘free market’ nor by the ‘force-field’ model. It is done by the ‘seminar group’ model of thought and discussion. There would have been little point, if any, in my mentioning Wolff’s claim if he were the only person to make it. In fact, though, his way of portraying Mill is a fairly usual one. For just one more example, take Anthony Skillen’s remark that, in the view of many socialists, freedom of speech is a ‘value specific to bourgeois market liberalism and its Millian view of “the free market in ideas”’ (Skillen 1982:139).6 There is clearly a danger that the phrase will become a misleading cliché. Certainly, I can well appreciate how this characterisation squares with a certain schematic way of representing the history of ideas—Mill as the ideologue of bourgeois liberalism, liberal doctrine as ‘possessive individualism’ reified, and so forth.7 But, to take another example, none of this stops Gertrude Himmelfarb from castigating Mill for having rested his case on a conception of ‘the democratic marketplace of ideas’ (Himmelfarb 1974:311), and Himmelfarb is—I am sure—far more kindly disposed to ‘bourgeois market liberalism’ than Skillen. And, for all I know, so is Frederick Schauer, who inaccurately saddles Mill with A form of subjectivism that defines truth solely in terms of the strength of an opinion in the marketplace of ideas’ (Schauer 1982:21). The characterisation is, nevertheless, wrong, and Mill’s work is not easily squeezed into the confines of any conventional Left/Right continuum.

FURTHER READING Two recent book-length discussions of Mill’s ethics are F.Berger’s, Happiness, Justice, and Freedom (1984) and Roger Crisp’s Mill on Utilitarianism (1997). Each writer spends some time setting the argument of On Liberty within its wider utilitarian context. Crisp discusses Williams’s objections to utilitarianism in chapter six of his book, and On Liberty in chapter seven. Otherwise, the volume of literature on utilitarianism in general, and on the problems raised by its consequentialist structure in particular, is immense. Jonathan Glover’s Utilitarianism and its Critics (1990) is an extremely useful collection. Sen and Williams’s Utilitarianism and Beyond (1982) is a valuable collection of recent, technically sophisticated, articles.

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CHAPTER V

Consequentialism and the right to free speech In this chapter we consider a different anti-consequentialist threat to Mill’s argument—a very serious one. A good way to introduce it is with the opening sentence of Robert Nozick’s Anarchy, State, and Utopia. Here it is: Individuals have rights, and there are things no person or group may do to them (without violating their rights). (Nozick 1974: ix) Now compare this with the following passage from On Liberty’s introductory chapter: It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions. (Mill 1859:1, §11) The contrast could hardly be sharper. For Nozick, the existence of moral rights is given. It is a datum for which any plausible ethical theory must account. By contrast, for Mill the very notion of ‘abstract right as a thing independent of utility’ is suspicious; so suspicious that a credible theory ought to dispense with it. Also, Nozick’s position is profoundly anti-consequentialist and therefore anti-utilitarian. For him, the unquestionable fact that rights exist means that utilitarianism is fundamentally flawed. (It goes without saying that Mill would disagree.) If Nozick is right, then their existence is another of those ‘moral phenomena’ for which consequentialism cannot account. We should consider this potential objection because, if it is correct, the classic defence cannot account for the existence of any right to free speech.

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Incidentally, it isn’t just that Nozick’s position contrasts so strongly with Mill’s. Another good reason for choosing to illustrate my argument with reference to Nozick here is that Anarchy, State, and Utopia is one of the most philosophically sophisticated articulations of the consensus at issue, i.e. that consequentialism and rights are antithetical. (Many readers will also know that Nozick’s book is also a defence of right-wing, pro-free market, antistate ‘libertarianism’. The fact is irrelevant here, though. From the perspective of the present argument, the only point of interest is the way he accounts for the foundation of rights.)

5.1 THE ANTI-CONSEQUENTIALIST ARGUMENT FROM RIGHTS Readers who feel inclined to side with Nozick’s account of rights and against Mill’s will do so because they anticipate that an argument which runs along something like the following lines is correct. Call it the ‘anti-consequentialist argument from rights’. Step One: For all his professed scepticism of ‘abstract right’ Mill is, in fact, attempting to defend a right to free speech (or ‘the liberty of thought and discussion’). Step Two: No consequentialist argument can successfully account for the existence of any right. Therefore: Step Three (Conclusion): Mill’s own argument—being an attempt to account for the existence of a right in consequentialist terms —is logically broken-backed and doomed to failure. Against this, I shall argue that the anti-consequentialist argument fails. Let us take it step by step.

5.1.1 Rights as claims (step one) First of all, we should note the point on which, for all their differences, Nozick and Mill agree. For both, to have a right is to have a certain sort of strong claim on the behaviour of others. I also agree with this and so—I am sure—would most philosophers who have turned their attention to the concept of a right. Let me spell it out, as follows. Suppose it is true that person P has a right to possess

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some object, or to perform some action, or set of actions, x. I am saying that, if this means anything at all, it means that P has a moral claim on the behaviour of others, a claim that they should behave in certain ways, and refrain from behaving in others, with the result that P is unhindered in the enjoyment of, or the doing of, x. In Nozick’s case, it is this feature of the concept of a right which leads him to adopt the metaphor of the ‘rights-fence’, that is to speak of rights as if they form an invisible moral wall which is there to protect each individual’s moral ‘territory’. Accordingly, throughout Anarchy, State, and Utopia he repeatedly describes rights violations as ‘border crossings’ or ‘boundary crossings’ and, as he puts it at one point, ‘A line (or hyper-plane) circumscribes an area in moral space round an individual’ (Nozick 1974:57). Mill attempts to capture the same conceptual features of ‘right’ in passages such as the following: When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. If he has what we consider a sufficient claim, on whatever account, to have something guaranteed to him by society, we say that he has a right to it. (Mill 1863:5, §24) And, as he adds by way of emphasis, To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (ibid.: 5, §25) The second point to note follows closely on from the first. It is that, in the case of genuine rights, claims of right count against and usually override considerations which would normally count in favour of taking some given course of action. Where they don’t, it can’t be said that the right in question is genuine. So, for example, suppose it is true that the world would be a happier place if person P were locked away. If the consideration was really sufficient to justify locking P up, it couldn’t seriously be claimed that P has a right to liberty. Or, again, what if the thousands of people who have bought tickets for tonight’s show at the Coliseum would be hugely entertained by the sight of P being devoured alive by ravenous lions.

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If it is really OK to serve P up as the main course, just for that reason, it can’t also be true that P has a right to life. Not that there is anything wrong with making the world happier, or with keeping the public entertained. Those would normally be good reasons for action, but not in these cases—and that is part of what is involved in saying that rights are at issue here. As a further illustration, imagine a world in which violation of Mill’s ‘no harm’ principle was considered sufficient to justify limiting something called ‘the right to free speech’.1 As you will recall, the former is ‘the very simple principle’ that ‘the only purpose for which power can be rightfully exercised, against his will, is to prevent harm to others’ (Mill 1859:1, §9). In such a world, not only would the expression of opinion be prohibited where it is actually or potentially injurious to others, where such expression is merely offensive it could be proscribed on the grounds that it constitutes an ‘offence against decency’. According to Mill, the latter category consists of actions which, ‘if done publicly, are a violation of good manners and, coming thus within the category of offences against others, may rightly be prohibited’ (ibid.: 5, §7). It is easy to see how what passed for the exercise of free speech in this world could come to resemble some banal phone-in programme, with only trivial, inconsequential, and inoffensive contributions remaining unbleeped out. Against this, I am sure that most readers would only be prepared to recognise a right as a genuine ‘right to free speech’ even though the consequences of the acts it permits are sub-optimal when measured in terms of, say, their dangerousness, their harmfulness, or the offence they are likely to cause. Scanlon puts it as follows: The doctrine of freedom of expression is generally thought to single out a class of ‘protected acts’ which it holds to be immune from restrictions to which other acts are subject. In particular, on any strong version of the doctrine there will be cases where protected acts are held to be immune from restriction despite the fact that they have as consequences harms which would normally be sufficient to justify the imposition of legal sanctions. (Scanlon 1972:204; my emphasis) Now, as it happens, Mill would agree. On Liberty’s ‘official’ purpose may well have been to defend a supposedly ‘very simple’ principle, but his subsequent argument reveals just how complex

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the task really turned out to be. According to the ‘real’ Mill, it is often the case that liberty—including liberty of expression—should be protected, even where its protection is detrimental, even greatly detrimental, to the happiness or well-being of those affected by its exercise. Thus, the Muslim aversion to eating pork is said to be ‘of that peculiar character, resembling an instinctive antipathy’. They find the practice ‘really revolting’—or so Mill claims. Likewise, ‘the majority of Spaniards consider it a gross impiety, offensive in the highest degree to the Supreme Being, to worship him in any other manner than the Roman Catholic’; not only that, ‘The people of all southern Europe look upon a married clergy as not only irreligious, but unchaste, indecent, gross, disgusting’. Coming closer to home— that is, to the complacent Victorian bourgeoisie (Mill’s real target)2 —there are still Puritan influences at work in England, especially those amongst the middle-classes who have ‘endeavoured, with considerable success, to put down all public and nearly all private, amusements: especially music, dancing, public games or other assemblages for purposes of diversion, and the theatre’. Mill takes pains to stress that prohibition is ‘a legitimate exercise of the moral authority of public opinion’ in none of these cases (Mill 1859:4, §14). Likewise, Mill’s remark that ‘If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind’ (ibid.: 2, §1) is clearly meant to apply, even where the opinion expressed is highly offensive to others. In summary, given the criteria for something’s being a right, outlined earlier—that a right is a source of claims on the behaviour of others and, moreover, that claims of right override or count against reasons which would normally count in favour of doing some action —it is pretty clear that Mill is defending a right to freedom of expression. Therefore, step one of the anti-consequentialist argument—the premise that, for all his scepticism of abstract right, Mill is nevertheless arguing for a right—has to be granted.

5.1.2 Rights, utility, and the source of rights (step two) But with that said, let us now turn to a subject on which Nozick and Mill differ, namely the source of rights. For Nozick, we have the rights we have by virtue of our being persons. They are, so to speak, ‘natural’ in the sense that we are born with them, just as we are born

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with limbs and a certain configuration of internal organs. We ‘have’ rights, just as we have heads, glands, kidneys, and so forth. It is because our rights are connected with our persons in the same sort of way that, according to Nozick, ignoring or ‘violating’ one person’s rights for some more general purpose—even a good purpose— transgresses against ‘Kantian respect for persons’. He writes: There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up. (Intentionally?) To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him. (Nozick 1974:33) To fully appreciate Nozick’s founding metaphor, I suggest that you read the passage through, and that you then read it through again, this time mentally substituting ‘set(s) of kidneys’ for ‘life’ and ‘lives’ as you go. You are then left with the claims that individual people have their own individual kidneys; that using one person’s kidneys for the benefit of another does no more than just that; that all that happens is that something is done to one person for the sake of another; that there is no great, all-embracing ‘social kidney’ and that talk of such things is probably just a cover up; that you don’t get some overbalancing good from sacrificing your kidneys. All of this seems true enough. As for entitlement, it seems right that ‘no one is entitled to force this upon’ anyone else unless you want to say that people (including agents of the state) are entitled to strap others down and force them to act as unwilling donors in kidney transplant operations. Now—my point—with that metaphor you can only portray the choice between acting to achieve a desirable goal and respecting the rights of others, where these aims conflict, as clear-cut, ‘either/ or’. Moreover, if violating a right is like removing a bodily organ— something likely to damage or even destroy a person—only callous indifference or unimaginably catastrophic circumstances will prompt

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you to go for the former.3 All Nozick’s main contentions about rights follow—that rights can only be ‘side-constraints’ on goal-directed behaviour, that ‘side-constraint’ and ‘end-state’ views of morality inevitably conflict, that ‘individuals are inviolable’, and so on.4 Given the metaphor, Step Two of the anti-consequentialist argument—the step according to which no consequentialist argument can successfully account for rights—follows likewise. But then there are other avenues. Another possible route to a satisfactory account of those features of the concept ‘right’ with which we are concerned—that is, the stringency with which, typically, rights place limits on the behaviour of other persons towards other persons—is the ‘rule utilitarian’ approach taken by Mill (1863: see especially the final chapter of Utilitarianism).5 Mill has to be read carefully, the more particularly so because it has become so much a truism over recent years that ‘utility’ and ‘rights’ connote antithetical notions. In fact, Mill is not at all opposed to the notion of rights per se, nor even to the idea that there might be fundamental, deep-seated, moral rights (as opposed to ‘merely conventional’ rights such as the right of UK citizens to drive on the left-hand side of the road, or the corresponding right of mainland Europeans or US citizens to drive on the other). What he rejects is —as he says— ‘the idea of abstract right as a thing independent of utility’ (Mill 1859:1, §11; my emphasis). This includes rejecting the idea that rights are ‘natural’ pre-social features of our ‘moral persons’ with which we happen to be born. It is consistent with this that, after his remark that to have a right is ‘to have something which society ought to defend me in the possession of, Mill should add, ‘If the objector goes on to ask why it ought, I can give him no other reason than general utility’ (Mill 1863:5, §25; my emphasis). As a utilitarian, Mill can account for rights with his argument that rights are defined by rules which have evolved over time; that there is, thus, a good utilitarian explanation for their having become ‘built-in’ to morality. As Mill puts it, throughout ‘the whole past duration of the human species…mankind have been learning by experience the tendencies of actions; on which experience all the prudence, as well as all the morality of life, is dependent’ (ibid.: 4, §23). And, as he goes on to add, It is a strange notion that the acknowledgement of a first principle is inconsistent with the admission of secondary ones. To inform a traveller respecting the place of his

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ultimate destination, is not to forbid the use of landmarks and direction-posts on the way. The proposition that happiness is the end and aim of morality, does not mean that no road ought to be laid down to that goal, or that persons going thither should not be advised to take one direction rather than another…. Nobody argues that the art of navigation is not founded on astronomy, because sailors cannot wait to calculate the Nautical Almanack. Being rational creatures, they go to sea with it ready calculated; and all rational creatures go out upon the sea of life with their minds made up on the common questions of right and wrong, as well as on many of the far more difficult questions of wise and foolish. (Ibid.) Now, if Mill can account for rights-defining rules in this way— as secondary principles which are, in turn, explicable in terms of the foundational principle of utility—we are in a position to deny the second premise of the anti-consequentialist argument. Far from rendering utility and rights antithetical, this type of account interlinks them by using the former to supply an explanatory context for the latter. Of course, Mill cannot describe rights as ‘natural’ or, like Nozick, speak airily of rights as ‘fences around persons’, but he would want to reject such ways of speaking in any case. However, what he can do is account for the strength of rights claims, that is, the degree to which they count against and override other considerations. And that, after all, is all he needs to do. As Mill sees it, the problem is to account for ‘justice’ which ‘implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right’ (ibid.: 5, §15). As he concludes, ‘Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others are as a class’ (ibid.: 5, §38). In summary, then, Step Two of the anti-consequentialist argument—the contention that no consequentialist argument can successfully account for the existence of any right—hangs, at least in part, on the acceptability of Nozick’s account of the source of rights. If the latter is correct, then Step Two follows. However, there are reasons for being sceptical of Nozick’s account and, so far, we have seen no good reason for rejecting Mill’s alternative.

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5.1.3 Conclusion (step three) The conclusion I want follows immediately. Since there are reasons for treating Step Two of the anti-consequentialist argument from rights with scepticism—that is, if there is no conclusive reason for thinking that ‘right’ denotes a fundamentally anti-consequential notion—the truth of Step Three, the claim that Mill’s argument is logically broken-backed, is left open to question. (Of course, such a conclusive reason could turn up one day. I realise that ‘rights versus utility’ is an ongoing debate. However, I don’t think the possibility need detain us here.) And there is something else worth remarking on too. Some of the points I have been making in this chapter prompt the observation that, whether it is correct or not, a Nozickean portrayal of rights provides a rather poor foundation for any account of a right to free speech. If so, then either Nozick is correct about rights and there is no such thing as the right to free speech or there is such a thing and Nozick is wrong. On this, it seems to me that there are three main points to bear in mind. The first is that there is a great difference between the possession of an opinion and the possession of an object. Mill himself puts the point quite eloquently as follows: Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race—those who dissent from the opinion still more than those who hold it. (Mill 1859:2, §1) In other words, giving you my opinion is not like giving you a banknote. (Incidentally, so much for the ‘free market in ideas’ interpretation of Mill.) More to the point, nor is my giving you my opinion much like my giving you one of my kidneys in a transplant operation. In the case of the money an item is moved from one metaphorical location, my ‘possession’, to another. Similarly, the kidney is moved from the body to which it is (literally) attached to another body. What was mine becomes yours, by transfer. But

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opinions do not come attached to persons in the same way, and nor can they be alienated or transferred. On the contrary, when I give you my opinion, you gain it but I do not lose it in the process. Moreover, if there is an advantage in your having that opinion, the benefit is doubled when you get it too. Since thought and discussion is a process which involves the transfer of opinions—not kidneys— it follows that, if there is a right to participate in the process, the Nozickian story according to which rights to be transferred from one individual person to another cannot hope to capture the fact. (It is true that one may have one’s ‘own’ opinions and that one’s kidneys are one’s ‘own’, but here we have a good example of the way grammatical similarities can obscure significant differences.) The second reason is the lack of parallel between the way a person is wronged when he or she is prevented from expressing an opinion and, on the other hand, the way someone is wronged when a possession is stolen. In the former case, it could be that no wrong is done. In most cases, it is less important that you, personally, get to express an opinion than that your opinion gets expressed by someone, if not by you. Thus, if your letter to the newspaper is rejected, you don’t have much call for complaint provided that a letter expressing a similar view to your own is published (and if the successful writer is more articulate and persuasive than you, you may even have grounds for celebration). Again, you have no real reason to object that the TV crew is ignoring you if your favourite political party is getting ‘air time’ anyway. In none of these cases is it plausible to maintain that you are denied possession, the ‘having’, of an item to which you are, as an individual, entitled. In the contrary eventuality—that your letter is published or you are granted the air time—nor is it appropriate to think of you as being given some item or object. The point is that metaphors involving the possession, theft, gift, granting, or withholding of objects do not seem especially appropriate in these contexts. Since Nozick models the possession of rights on the possession of objects, it follows—once again—that he does not model rights in a way which provides a sound basis for the right to free speech. The third reason for questioning the adequacy of Nozick’s account when it comes to free speech relates to a point I raised early on in this discussion. This is that, to qualify as an act of expression or as an exercise of free speech, an act (of speech, writing, or whatever) requires a context. Moreover, the fact that it must include at least two people, a ‘speaker’ and a ‘hearer’, means that the context must

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be—in a minimal sense of the phrase at least —a ‘social context’. Speaking out loud, or to yourself, in private, where no one can hear you, does not count as exercising free speech, and, for the same reason, it could not be true that Robinson Crusoe, alone on his island, has the right to free speech. But— against this—if all rights are, as Nozick says, parts of persons, it should make no difference. Even Crusoe would have the right to free speech. As I have said, two conclusions are consistent with all this, but only one can be right. Either Nozick’s account is correct, and there is no such thing as a right to free speech (or, at least, nothing ‘fundamental’; that is, nothing other than a ‘merely conventional’ artificial right people might choose to set in place for certain limited purposes); or its inability to account for any right to free speech there may be shows that Nozick is wrong. For the moment, I will only comment that, out of the two, I prefer the second. (I suppose Nozick’s account could hold for some rights—it could well be true in the case of the right to life—but even if it does, we needn’t assume that it holds for all of them, and certainly not for free speech.)

5.2 CONSEQUENTIALISM: CONCLUSIONS I have now come to the end of my discussion of the implications its consequentialist structure carries for Mill’s argument. When I opened the discussion, in chapter four, I stressed that I am not out to demolish Mill’s argument but to conduct a rescue operation, and it would be as well to bring things to a close by re-emphasising the point. To begin with, let me summarise the main points covered in the last two chapters. Firstly, then, utilitarianism, the ethical theory, falls foul of serious objections thanks to its consequentialism. It would have been quite reasonable to expect Mill’s defence of thought and discussion to fall foul of the same objections. However, as I have pointed out in Chapter Four (pp. 56ff.), the specific argument can be prised from its general utilitarian context with the result that it escapes them. Secondly, there is a familiar line of objection to Mill’s defence which concentrates on the contingency of his assumption that thought and discussion leads to knowledge (an increase in the ‘truth supply’) and stresses that the assumption is frequently false. Against this I argued that even that objection loses much of its force if one construes ‘exercising the liberty of thought

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and discussion’ narrowly to cover only those cases which closely match the ‘seminar group’ paradigm. Chapter Four, pp. 66ff.) Thirdly, as Mill is a utilitarian, the prevailing consensus might reasonably lead one to anticipate him to be logically incapable of accounting for any right whatsoever, including any right to free speech there may be. However, as the argument of the present chapter demonstrates, this turns out to be jumping to conclusions. It should be clear from the foregoing summary that, far from playing a ‘knocking’ game, it has been my intention to reach a just appraisal of Mill’s argument; to save it from drowning in a sea of preconceptions and from becoming fossilised into dead dogma as a result. As for the more general perspective, it depends on what you take the main thrust of Mill’s argument to be. Specifically, a lot hangs on whether you treat the ‘seminar group’ model as descriptive or normative. Mill is assuming that free and open discussion within the institutional context typified by the seminar is a reasonably efficient method for pursuing and acquiring truth. So it may be. However, if we treat Mill’s exercise as descriptive, he can be criticised on the grounds that he has a defence of free speech only to the extent that it is realistically possible to think of society at large as resembling an enormous seminar group whose members are earnestly and rationally seeking truth. It is frequently unrealistic to think of society that way, and, to the extent that this is so, Mill’s argument fails. But—note—that objection applies only taking things as they are. If we interpret chapter two of On Liberty normatively, as expressing a vision to which society could, in future, come to correspond more closely, it is less open to criticism. And this is not to take an unrealistic or over-idealistic view of things. After all, we are living through a ‘communications revolution’, are we not? It is now possible for individuals to communicate not just within communities but across the planet, information is more generally disseminated, and compared with a century ago, humanity is generally more literate. I am sure there is a downside to all this, that the communications revolution carries with it the potential for the use of manipulative power on a hitherto unprecedented scale. I also realise that for everything caught by a catch phrase there is usually something else it fails to catch. To take another example, we should not forget that ‘the global village’ is, in reality, a sprawling city in whose southern environs there lies a vast slum. Even so, we should

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not forget, either, that most technological change has potential for both evil and good. Treated as an expression of things as they could be, the argument of Mill’s second chapter can be a source of hope and inspiration.

FURTHER READING The appearance of Rawls’s A Theory of Justice (1972) has spawned a huge body of literature on the problematic relationship between utility and rights. Jeremy Waldron’s Theories of Rights (1984) remains one of the most valuable collections. This contains work by—amongst others—H.L.A.Hart, T.M.Scanlon, and Ronald Dworkin. Some important discussions of Nozick’s ‘libertarian’ view of rights are Scanlon (1981), Thomson (1981), and Nagel (1981). All are reprinted in Paul (1981). Nozick’s account of rights is also discussed in Chapter Two of Jonathan Wolff’s Robert Nozick: Property, Justice, and the Minimal State (1991) and in Chapter Eight of my own Anti-Libertarianism: Markets, Philosophy, and Myth (1994).

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CHAPTER VI

The value of truth

6.1 THE VALUE OF TRUTH AND THE THREAT OF RELATIVISM A viable consequentialist argument must hold at least one thing— one activity or state of affairs—to be good, not for its consequences, but ‘in itself’ or ‘for its own sake’. That ought to be obvious, for, in the absence of such an assumption, there would be no good consequence supposedly produced by the actions and policies the argument recommends for their having such a consequence. The argument would inevitably collapse into incoherence. For Mill the good end supposedly produced where people are left free to engage in thought and discussion is, as we have seen, an increase in the number of propositions which are known to be true; what I have been calling (for short) ‘an increase in the truth supply’ or (for even more short) ‘truth’. In this chapter I ask what justification there can be for placing such a high valuation on truth. The question is appropriate because political philosophy has, after all, thrown up other possible candidates for the role of supreme value. For Plato it was justice. For the utilitarians (including Mill himself most of the time) it was happiness. This raises the possibility that Mill’s valuation of truth is arbitrary, even that it is ‘merely’ arbitrary. One good reason for raising these points is, quite simply, completeness—I would not have done full justice to the classic defence otherwise. But there is another. Asking what grounds there can be for Mill’s valuation of truth must necessarily involve considering how far the classic defence is threatened by certain forms of relativism, ethical or value relativism on the one hand, epistemic relativism on the other. In the former case, if certain variants of what I shall refer to as value relativism are correct, the liberalism of which Mill’s attachment to the liberty of thought and discussion is such an important dimension could turn out to be nothing more than

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one out of a set of equally tenable alternatives. In the latter, if there is anything to be said for epistemic relativism there are very few genuinely uncontestable truths and his view that ‘the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested’ is undermined (Mill 1859:2, §32). Indeed, it could turn out that what counts as truth is always relative to some value system or culture. If so, presumably there are implications, not just for Mill’s argument, but for any defence of free speech which prioritises truth. These are not points to which Mill himself would have paid much attention, but many contemporary readers will consider them especially pressing. The reason is that there has been a resurgence in relativism of various kinds since Mill’s time. Within philosophy, this shows up in the seriousness with which certain relativistic theses are now taken. Examples are certain versions of postmodernism and communitarianism, and I shall be devoting a certain amount of discussion to these later in the chapter. Outside philosophy, in the world at large, there is now a greater respect for cultural diversity and difference. (Had he been writing now, I doubt that Mill would have made such an unqualified reference to ‘those backward states of society in which the race itself may be considered as in its nonage’.) (Ibid.: 1, 10). I think it likely that most readers will share my own respect for cultural diversity, but I am equally sure that many of those same readers will also fear that making concessions to relativism risks opening the door to some fearsome varieties of irrationalism and fundamentalism. Such readers will want their instinctive support for liberty and toleration grounded in something more than the merely contingent and accidental. Therefore, the following discussion is in line with an aim I set myself in the introduction, for the threat of relativism is one of those topics which, in our own times, anyone opening a book entitled Free Speech is entitled to find discussed.

6.2 VALUE RELATIVISM: TRUTH AND THE GOOD SOCIETY 6.2.1 Liberalism: ‘absolutist’ and ‘relativising’ Was Mill (what I shall call) an ‘absolutist’ liberal, or was he (what I shall call) a ‘relativising’ liberal? We should pause to consider the

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question, if only briefly, for three reasons. One is that it is important to gain an accurate picture of Mill’s true position. A second is that doing so will help us appreciate his vision’s persuasiveness and power. A third is that it will enable us to see just how the charge of arbitrariness arises. A good way to introduce the two forms of liberalism is by distinguishing three questions which are clearly raised by Mill’s valuation of truth. First of all—and obviously—we can ask, what is good about truth itself? After all, you need only pay a visit to your local newsagent’s, as I did the other morning (it was 21 May 1997), to gather strong evidence on which to found a persuasive prima facie case against Mill’s supposition that knowledge of truth has significant value. For example, that week’s Hello! magazine carried a main feature in which ‘The Princess of Wales’ Mother, Frances Shand Kydd, tells how her daughter’s troubled life mirrors her own’. Other articles featured the domestic lives and relationships of Queen Noor of Jordan, Tonicha Jeronimo (star of Emmerdale, a TV soap) with her fiancé Stuart Wade, and Lady Ridsdale ‘at home’ with her husband Sir Julian. There was a feature describing Princess Michael of Kent’s attendance at a fashion show, another describing an encounter between the Prince of Wales and the Spice Girls, and much else of a similar nature. Turning to the tabloids, the lead article in the Mirror recounted the marital difficulties of Bev Callard, a star of Coronation Street (another TV soap). The lead in the Daily Star described the acquisition of a nineteen-year-old boyfriend by Martine McCutcheon, who plays the character Tiffany in Eastenders (yet another TV soap). The Sun’s lead featured the soccer star Paul (‘Gazza’) Gascoigne. The subject matter—the predominance of gossip about the lives of royalty, soap opera stars, and footballers—is typical of the British popular press on an average day. I suppose it is harmless enough too, unless, for example, ‘sex-bomb Martine McCutcheon’ has objections to her relationship with a ‘teenage TV star lover-boy’ (Daily Star) becoming public knowledge.1 Still my point is that, for all I know, the information carried in Hello!, the Mirror, and so on is true. But even if only some of it is true, Mill’s presupposition is called into question, for the material is utterly trivial and meretricious. So far as I can see, its suppression would not be a matter of any great significance, at least not for the reasons Mill gives. (Who cares if ‘all mankind is robbed’ of the opportunity to know what soap-opera stars get up to with their nineteen-year-old boyfriends?)2

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A second question is why truth rather than, say, happiness, or justice, or the ‘personal liberty’ to organise one’s affairs as one thinks fit? As we noted a moment ago, there are other plausible candidates for the role of ultimate ‘good-in-itself’ value. The question of truth’s priority over happiness seems especially apposite, if only because Mill claims to be a (happiness-prioritising) utilitarian. But if he is claiming—say—that knowledge is a precondition for happiness then counter-examples abound here too. For example, if it became generally known that a rogue meteorite was due to collide with the Earth this time next week, destroying all life except cockroaches, it is not at all obvious that one effect would be an increase in the general happiness. Finally, a third difficulty concerns the extent to which truth counts against other values. The question here is not so much why truth rather than happiness (or justice, or personal liberty), it is how much truth in relation to how much happiness (or justice, etc.)? It is appropriate to raise the former question if it is Mill’s view that the value of truth is, so to speak, absolute, and that happiness, justice, and so on, derive any value they may have from their connection with it. The latter question is appropriate if Mill thinks that qualities other than truth can have inherent value, and that the problem is to ‘balance’ one against the other. Since it is possible to query Mill’s valuation of truth, it follows that it must be equally possible to query his valuation of the freedom to exercise thought and discussion in pursuit of truth. So, now note that the three questions just distinguished are paralleled by three questions concerning Mill’s valuation of the latter. Moreover, because Mill treats the liberty of thought and discussion as just one out of a set of freedoms, it is possible to question his valuation of the entire set in the same way. Thus, first, just as you can ask why truth should have any special value, so you can ask, why freedom (construed as the full set of liberal freedoms)? And, in parallel with the distinction between the second and third questions, so you can ask does Mill give overriding weight to freedom in all cases, or is he prepared to countenance trade-offs between freedom and other values? If the former interpretation of his position is correct, he is what I shall call an absolutist liberal; that is, someone who holds that freedom is the single, ultimate, ‘good-in-itself’ value. This interpretation is advanced by, for example, Gertrude Himmelfarb in her study, On Liberty and Liberalism (Himmelfarb 1974). Himmelfarb emphasises such features as Mill’s concern to ‘assert

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one very simple principle, as entitled to govern absolutely the dealings of the society with the individual in the way of compulsion and control’ (Mill 1859:1, 9; my emphasis). In Himmelfarb’s opinion, this is to treat liberty as ‘the pre-eminent and ultimate principle’ (Himmelfarb 1974:8). On the other hand, if Mill holds the latter view then he is a relativising liberal; that is, a liberal for whom freedom must often be weighed in the balance against other values. By way of illustration, for a good example of a philosopher who holds this view, take Sir Isaiah Berlin. In his essay ‘Two Concepts of Liberty’ Berlin writes: Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience. If the liberty of myself or my class or nation depends on the misery of a number of other human beings, the system which promotes them is unjust and immoral. But if I curtail or lose my freedom, in order to lessen the shame of such inequality, and do not thereby materially increase the individual liberty of others, an absolute loss of liberty occurs. This may be compensated for by a gain in justice or in happiness or in peace, but the loss remains. (Berlin 1969:125) Note the contrast. Whereas Mill argues for ‘one very simple’ principle, it is Berlin’s view that ‘the belief that some single formula can in principle be found whereby all the diverse ends of men can be harmoniously realised is demonstrably false’. As this illustrates, whereas the absolutist liberal holds that only freedom has ultimate value the relativising liberal holds that not only freedom has ultimate value. It follows—clearly—that one is logically inconsistent with the other. It also follows that where a writer endorses both, sometimes one and sometimes the other, tension is bound to result. Himmelfarb claims to detect such a tension within Mill’s own work. On her interpretation, the (absolutist) Mill of On Liberty contrasts with the (relativising) ‘other Mill’ who ‘argued that “government exists for all purposes whatever that are for man’s good: and the highest and most important of these purposes is the improvement of man himself as a moral and intelligent being”, that “men do not come into the world to fulfill one single end, and there is no single end which if

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fulfilled even in the most complete manner would make them happy”’ (Himmelfarb 1974:337–8).

6.2.2 The charge of arbitrariness However, I shan’t pursue the last point any further because—for our purposes—it is less important to determine for sure whether Mill was an absolutist or a relativising liberal than it is to note that, out of the two forms of liberalism, the former is the more evidently exposed to the charge that the value it attaches to freedom is arbitrary. Absolutist liberalism, for which only freedom counts is, at best, the expression of a preference. The most that can be said for it is that it embodies a certain romantic posture. This is because there is nothing about the fact of one person’s having a preference which logically requires another to share it, and ‘give me freedom or give me death’ is not a slogan with universal appeal. So far as I can see, the absolutist liberal has nothing to say to you if you are unimpressed by it, hence the arbitrariness. By contrast, relativising liberalism has a greater claim to be taken seriously because it paints what is, on the face of things at least, a far more realistic picture of the moral universe. This is because it seems right to think that, although it would be very hard to deny freedom a place in the moral scheme of things, it would be equally unrealistic and implausible to deny that freedom must often be weighed in the balance against other significant values. The consideration lends relativising liberalism a certain prima facie appeal. Even so, it should be treated with caution because, by itself, talk of ‘balancing’ is not enough. Such talk needs to be supplemented with an explanation of what values are to be included in the equation and which ones ruled out, an account of how much weight each value has relative to the others, and of how the balancing is to be done. In the absence of such an account, ‘balancing’ is merely a euphemism for a purely intuitive non-procedure. I mean that, where anything can be balanced against anything else in any way one likes, one can always perform the ‘balancing trick’ in a way which yields the conclusion one most wants it to yield. It does not necessarily come up with anything recognisable as an acceptable moral position, let alone a liberal moral position. So there is potential for a charge of arbitrariness to bite here too. For a parallel, take the Roman emperor Heliogabolous, of whom it is said that he would have slaves put to death on the lawn, simply

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in order to enjoy the contrast between the red of the blood and the green of the grass. Whenever Heliogabolous found himself having to decide which slaves to have slaughtered, and on which part of the lawn, he would no doubt have found himself balancing values, aesthetic against others—but he was obviously no liberal. Likewise, when a British government minister recently remarked— in a manner characteristic of government ministers—that ‘we have a very difficult balance to strike’ between the interests of a political refugee and ‘British interests’ in preserving the good will of ‘extremely friendly governments with whom we have good diplomatic and very good trade relations’, she may have had a point, but —in the context—it was not a liberal point. (The ‘extremely friendly government’ she had in mind was the authoritarian feudal regime which dominates Saudi Arabia.)3

6.2.3 A liberal vision of the good society How could Mill have defended himself against the accusation that his valuation of freedom is arbitrary? To begin with, note that it would be quite implausible to suggest that he takes certain values for granted without reflection, that he pulls them out of the air, or that he just stipulates that truth and freedom have intrinsic worth. So if his assumptions are arbitrary, they are in no sense ‘merely’ so. Quite the contrary, readers familiar with Mill’s writings will know that, throughout his work, he articulates certain key concepts in a way which tends to interlink each with the others. For example, take the way he interprets and connects knowledge, progress, and happiness. The first (knowledge) is treated by Mill as a measure of the second (progress), so much so that ‘the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested’ (Mill 1859:2, §32). Progress and the third (happiness) are also, in turn, interconnected. So, for example, when Mill tells us that he regards ‘utility as the ultimate appeal on all ethical questions’ he adds that ‘it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being’ (ibid.: 1, §11) This echoes Mill’s distinction between ‘higher’ and ‘lower’ pleasures and the famous line with which he gives it emphasis: ‘It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied’ (Mill 1863:2, §6). Put all this together and you are left with a definition, or delineation, of a

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particular vision of the good society. In that good society happiness (of the sort appropriate to humans, or civilisations, ‘in the maturity of their faculties’) (ibid.: 1, §10) is achieved through progress towards knowledge. Much of On Liberty may be summarised as the claim that the vision gains its greatest chance of realisation where people are left free to debate opinions or, more practically, to conduct ‘experiments in living’ (ibid.: 3, §2ff.). (Small wonder that Mill should have accorded a special historical role to the intellectual, who, in the context of the vision, becomes the midwife of change.)4 So, the answer to the question of how Mill could defend himself against the charge of arbitrariness is, with this vision. It is the vision which supplies the explanation for why certain values are significant and not others. Where balancing is required, it is the vision which helps the relativising liberal balance values. But does any of this help? Not entirely for, however wellarticulated it may be, Mill’s vision is, nevertheless, a vision and we are still left with the question why that vision rather than some other? (For example, rather than opt for Mill’s ideal, why not go for a rigidly ordered society in which everyone’s place is fixed and known? Less drastically, why not accord more priority to happiness, or equality, or to more ‘communal’ values such as solidarity and fraternity?) And—worse—what if it should turn out that we are faced with a smorgasbord of ideologies, and what if there is no rationally founded criterion for selecting one from amongst the others, any more than there is a criterion for determining which item from the smorgasbord to choose? If there is no such criterion, Mill cannot answer the question. Here, then, is a point at which Mill’s valuation of freedom appears seriously threatened.

6.3 VALUE RELATIVISM: WHOSE VISION? Even if no one had ever taken it seriously we should, perhaps, have had to entertain the thesis that the realm of values is most accurately represented in smorgasbord terms. But, in fact, it is a thesis which is strongly encouraged by certain currently prevalent forms of philosophical argument, so we should take it very seriously indeed. To take just one example, consider Alasdair MacIntyre’s argument that ‘we inhabit a social universe composed entirely of rival traditions’, in which ‘there are a number of contending, incompatible, but only partially and inadequately communicating, overall views of that

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universe’, and in which—moreover— ‘each tradition is unable to justify its claims over against those of its rivals except to those who already accept them’ (MacIntyre 1988: 348). If this is right, liberalism is just one item on a menu. In fact, the way MacIntyre represents the situation, liberalism does rather worse than other ‘traditions’. In his view, it is, in a way, a form of self-deception because, although it may have begun ‘as an appeal to alleged principles of shared rationality against what was felt to be the tyranny of tradition’ it ‘has itself been transformed into a tradition’ (ibid.: 335). It should go without saying that arguments such as MacIntyre’s reflect and, in their turn, license a certain way of thinking whose influence extends far beyond the confines of the academy. For example, take the following remark by a commentator on the Rushdie affair.5 We are embattled in the war between the cultural imperatives of Western liberalism, and the fundamentalist interpretations of Islam, both of which seem to claim an abstract and universal authority. (Bhabba 1989:139) Now, it is not my intention to conduct a full-scale critique of communitarianism here. My aim is only to show how Mill’s argument is threatened by doctrines such as communitarianism. But I think it is in line with this aim that I should make a number of critical remarks. The first is that if you are happy with this way of representing the situation (as the author of the piece from which I have quoted is not)6 then you might well begin to think of choosing one alternative or the other—‘Western liberalism’ or ‘fundamentalist Islam’—as similar to choosing which football team to support. As the same commentator goes on to remark, it is a view of the ideological world which results in an ‘implacable antagonism that is continually rehearsed in the media, sometimes by journalistic reportage, at other times as informed opinion or intellectual debate’ (ibid.). My point is that you will be even more likely to think that way if, like MacIntyre, you believe that we are faced with a set of relatively hermetically sealed traditions and that ‘no tradition can claim rational superiority to any other’ (MacIntyre 1988: 348).7 Of course, your choice will not be entirely random or accidental. This is the sense in which someone brought up as a ‘western liberal’ —imbued with liberal values from an early age—is unlikely to

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become transformed overnight into an ‘Islamic fundamentalist’. After all, there are usually good explanations for the way each of us has turned out as he or she has, and this includes our moral commitments. Typically, such explanations will refer to upbringing and cultural environment. As another contemporary ‘communitarian’ writer, Michael Sandel, has put a related point, it is a fact of moral experience that, for each of us, our identity is tied up with certain specific, contingent and local, ‘aims and attachments’. Against the ‘deontological insistence’ to the contrary—an insistence which he ascribes to liberalism—Sandel writes, But we cannot regard ourselves as independent in this way without great cost to those loyalties and convictions whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic. Allegiances such as these are more than values I happen to have or aims I ‘espouse at any given time’ (Sandel 1982:179) Sandel may have a point. But then it is equally true that, as a North Londoner, I don’t ‘just happen’ to support the soccer team Arsenal, or that I could ‘espouse’ another ‘at any time’. I am, after all, a member of ‘this community’ and a ‘bearer’ of ‘this history’, and although I may occasionally think of switching my ‘allegiance’ to Spurs (the other local team), I would be unlikely to switch it to Paris Saint Germain. It is even more improbable that I will one day start to take an interest in basketball and become a supporter of the New York Knicks or the Chicago Bulls.8 To sum up my first point, then, I don’t think it would be at all unfair—or a caricature— to describe Sandel (and MacIntyre) as offering us a ‘football supporter’s view’ of the moral universe. My second critical remark follows on from this. It is that communitarianism only gets the moral story half right. There are certain features of the moral universe which it overlooks, or at least plays down. For example, it is striking that what Sandel calls living by ‘loyalties and convictions’ in a manner which ‘is inseparable from understanding ourselves as the particular persons we are’ is

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quite similar to what a Sartrian existentialist would condemn as ‘bad faith’. For Sartre, this is both a failure of responsibility and a culpable form of self-deception which consists in failing to confront the fact that your role is chosen by you, not for you—that you can always set yourself apart from that role, stand back from it and consider it. Thus, in marked contrast to Sandel, Sartre insists that ‘I am never any one of my attitudes, any one of my actions’ (Sartre 1989:59). (Many readers will be familiar with the famous example Sartre uses to illustrate his point, the example of the café waiter ‘playing at being a waiter in a café’ (ibid.: 102).)9 In conclusion, there are good reasons for treating relativistic theories of value, such as communitarianism, with a certain amount of scepticism.10 Finally—my third point—for an illustration of how this ‘football supporter’s’ view of things extends beyond philosophy consider Norman Mailer’s remark that ‘Ayatollah Khommeini was discovering “that yes, maybe we are willing to suffer for our ideas. Maybe we’re even willing to die for the idea that serious literature, in a world of dwindling certainties, is the absolute we must defend”’ (Mailer 1989:161). Mailer’s claim invites the retort that—maybe— there are fans out there who are willing to die for Arsenal, and his attitude will certainly baffle those Muslim readers who, as another commentator on the Rushdie affair has judiciously pointed out, ‘do not read The Satanic Verses with minds conditioned by occidental literary conventions’, and within whose culture ‘the novel is a recent implant’ (Ruthven 1989: 205). And if ‘no tradition can claim rational superiority to any other’ (MacIntyre 1988:348), who is to say who is right? However, I should add that all I have done is suggest that communitarianism has unsatisfactory aspects. For all I have said, it could still turn out to be right. Even so, before considering value relativism further, I should now like to turn to the relation between Mill’s argument and a different type of relativism—epistemic relativism.

6.4 EPISTEMIC RELATIVISM: THE ‘TRUE BELIEVER’ If Mill’s argument is threatened from one direction by value relativism, it is threatened from another by epistemic relativism. According to this type of relativism there is no absolute standard of

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knowledge or truth. Epistemic relativism takes a moderate and an extreme form but, in both, it threatens Mill’s defence of free speech by challenging his ‘rationalistic’ assumption that the destination he prizes so highly is best reached via a given route; in other words, that there are appropriate procedures which must be followed if truth is to be established. For Mill, the ‘appropriate procedures’ are — roughly speaking—the ‘rational’ procedures followed by individuals who engage in debate having first adopted a sceptical stance. The point of their activity must derive from their preparedness to test arguments against shared standards of logic and evidence; standards which are genuinely authoritative, and publicly recognised as such. Unless this were so, there would be no special connection between debate and truth. ‘Thought and discussion’ would lose the point Mill says it has. 11 But what if there are no such authoritative standards? More cautiously, let us first ask, what if there are authoritative standards of logic (according to which a proposition, p, must either be true or false, and according to which if p is true, and if p entails q, then q must be true, and so on), but what if there are no authoritative standards of evidence? That is the position affirmed by epistemic relativism in its more moderate forms. To illustrate the possibility I am envisaging, take the case of true believer T. T believes that p. For the sake of argument, let us suppose that p equals ‘God exists’. (It could just as well equal ‘God does not exist’, or any other belief one might care to name.) Assume, if you like, that T’s belief, p, is so strong that T thinks of it as knowledge. (‘I just know that God exists’ says T.) It is pretty clear that the belief would not go down well with atheistic, rationalistic, Mill, so let us now introduce Mill into the story and suppose that he confronts T with a challenge, as follows: MILL: You say you know. How do you know? TRUE BELIEVER: I know that God exists because an angel came to me one night and told me to have faith. MILL: How can you be sure that it was an angel and not just some person? TRUE BELIEVER: I am just sure. And so the ‘dialogue’ continues—or so we may imagine—until Mill has confronted T with the full set of arguments contained in his Three Essays on Religion (Mill 1874). (These either rest on the lack of evidence for God’s existence or else they stress that the usual

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arguments for God’s existence are logically inconsistent or inconclusive.) In the end, T says, ‘I see that you have some good arguments, but I just know that God exists’. What is going on here? There is no doubt that Mill would treat T as irrational. His dismissive phrase would be ‘sincere religious bigot’ (Mill 1859:1, §7). But this could be unfair. After all, there is nothing illogical or internally incoherent about T’s position and— for that matter—there are few who would think it always appropriate to react with scepticism to first-hand, eye-witness reports of face-to-face encounters. (If I were to tell you that I once attended a lecture given by A.J.Ayer you wouldn’t necessarily respond with, ‘How do you know it was Ayer and not just some person?’) As the exchange between T and Mill progresses all that happens is that T systematically refuses to consider what Mill would regard as an acceptable standard of evidence. (And, of course, T can easily match Mill’s ‘religious bigot’ accusation with ‘O ye of little faith’, etc.) In like manner, Mill systematically refuses to count T’s ‘evidence’ as genuine. And, according to moderate epistemic relativism, that is the end of the story. It holds that, because there are many tenable standards of evidence— tenable ‘to someone’, that is —it quite often happens that there can be no decisive resolution to a disagreement. How plausible is this form of epistemic relativism? First, I am aware that many readers will automatically jump to the conclusion that no one sane could entertain it for a moment, and that I am using T to represent intolerant, irrationalistic, ‘fundamentalism’ in all its forms. However, you don’t have to represent T in any such terms (and any inclination to do so is probably just a by-product of the fact that I have presented the example in the context of a discussion of free speech). In fact, the type of disagreement illustrated by the ‘true believer’ story is more the norm than the exception. To appreciate that not all religious believers are misguided fundamentalists with closed minds you need only tune your radio to an appropriate station at an appropriate time to hear some leading member of the establishment—a judge, an academic, a scientist, a pillar of such-and-such community— speaking with measured confidence on a subject such as the day he or she came face-to-face with God, or what God’s attitude to the latest set of unemployment figures, or international crisis, is likely to be.12 One philosophical point which the example may also be used to illustrate is quite familiar too. This is the point that, however

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impeccable an argument’s logical chain of inference may be, its conclusion can do no more than render explicit what is already implicitly contained in the premises. (‘Garbage in—garbage out’, as computer specialists say.) All this ordinariness serves to underline the potency of the threat posed by epistemic relativism, even in its moderate form, to Mill’s defence of the liberty of thought and discussion. Let us be clear just what the threat is. Recall that, according to Mill, the activity ‘thought and discussion’ is the route to a definite goal, and that—as the goal is approached—‘the number of doctrines which are no longer disputed or doubted will constantly be on the increase’; so much so that, ‘the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested (Mill 1859:2, §32). If Mill is right—if there is a single, definite goal to which those engaged in thought and discussion are eventually leading us —there must be a single, uniquely privileged set of premises on which they can all agree. This has to be so because, as noted, what you get out of an argument (the conclusion) is conditioned by what you put into it (the premises). The true believer story poses a threat to Mill’s argument because it throws into relief the possibility that there may be no such uniquely privileged set of premises, in which case there can be no unique destination and no ‘consolidation of opinion’ (ibid.) of the sort he envisages. Mill’s argument that the whole point of thought and discussion is to reach truth, loses force. To this I should just add that the ‘true believer’ example can also be used to illustrate a different problem. This is because T’s beliefs can include the beliefs that you, and people like you, don’t count, that you should be treated as an inferior or even that you should be done away with. Even if it permits T to hold and express such beliefs, no free speech principle worth the name can permit T to act on them. (In this case, if he should try to, T does start to appear menacingly fundamentalist.) As this indicates, there is an approach to free speech which seeks to defend it by connecting it not so much with truth—as Mill’s does—but with toleration. However, that is a subject to which we shall be turning in Part Two.

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6.5 AN APPEAL TO SCIENCE 6.5.1 An appeal to science Some readers won’t like the conclusion I have just reached. They will suspect me of suggesting that ‘there is no such thing as truth’ or that ‘all truth is relative’. Against this, they will want to insist that truth is, in some way, single and objective. It is also likely that, those same readers (or some of them) will tend to look to the natural sciences for a source of objective truth. For this reason it is worth considering whether Mill’s argument can be saved with the help of an appeal to science. As I shall now argue, it can’t. There are two main reasons why. The first is that science is itself an inherently relativistic enquiry. The second is that science is a specialised activity which cannot serve as a model for many of the others in which thought, discussion, reason, argument, and so on, play an integral role. I shall concentrate on the first for the moment. (The second is more straightforward, so it can wait.) To begin with, then, note that it would help Mill a great deal if two facts were the case. First, it would help him if it were possible to draw a clear conceptual line dividing truth from method; that is, between the meaning of ‘proposition p is true’ on the one hand and, on the other, the procedures that have to be followed if p’s truth is to be established. Such a line could easily be drawn if, for example, some version of the correspondence theory of truth were correct; that is, if a proposition were—in some way—a ‘picture of a fact’. In that case the proposition ‘p is true’ would itself be true if p corresponded to (‘pictured’ or ‘mirrored’) a state of affairs ‘out there’ in the ‘real world’. It would follow that p might be true even if no one had taken steps to establish its correspondence to a state of affairs, or was even in a position to do so, and such facts would make it clear that truth and procedure would be quite distinct. This would help Mill in one way by enabling him to privilege that set of premises which consists of propositions which actually do mirror the facts ‘as they are’ as being the correct ones from which to begin an argument. It would help him in another by giving the activity of thought and discussion the goal of arriving at that description which mirrors the world ‘as it is’. However, it is one thing to draw the truth/method line conceptually, or ‘in principle’, and another to draw it in practice, and Mill would only be helped in this way if it were also the case, secondly, that there is available a way of telling when,

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having followed the procedures, you have arrived at a description which accurately pictures the facts. Now, my guess is that those readers who are inclined to look to the sciences for support, in favour of Mill and against T, will do so because they feel that these criteria are fulfilled in the case of science. They will believe something like the following: first, that the function of science is to uncover the true nature of an independent reality; second, that—even if the goal will never be reached— science is getting closer and closer to achieving a full description of reality ‘as it is’; third, they will believe that it is getting there through the application of carefully honed, specifically scientific procedures. If this is right, the two criteria are satisfied. There is a clear conceptual divide between truth and method and a way of telling when ‘the’ truth has been reached. If only things were so clear cut. In fact, it is (to say the least) difficult to arrive at a way of distinguishing truth from method in science which pays more than lip-service to the distinction. To illustrate the point, we could do worse than take the account of the proposition offered by Mill himself in the early chapters of A System of Logic (Mill 1843). This account combines an element of correspondence with an element of (what I may as well call) operationalism. The former is embodied in, for example, Mill’s claim that propositions are composed of names. ‘Every proposition consists of two names’ he writes, ‘and every proposition affirms or denies one of these names of the other’ (ibid.: 13). In fact no less than three chapters—the first three of the book— are devoted to naming, to itemising the various types of entity for which a name can ‘stand’ and so forth. The point is that if all words are essentially names, as Mill claims, then a proposition is true when it corresponds to a state of affairs. (So Mill’s view is—roughly—that a proposition is true when it ‘stands for’ a fact.) The procedural element is soon introduced, however, thanks to Mill’s radical inductivism. According to this we can be confident in the truth of a proposition only to the extent that we have, in a somewhat Humean manner, regularly experienced a constant conjunction of phenomena. So, for example, after claiming that ‘in the proposition, All men are mortal, the word man connotes the attributes which we ascribe to a certain kind of living creatures’, he writes:

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When we say, man is mortal we mean that wherever these various physical and mental phenomena are all found, there we have assurance that the other physical and mental phenomenon, called death, will not fail to take place. (ibid.: 63) Notice Mill’s choice of phraseology. He could have said, ‘We conclude that man is mortal because we discover that, wherever these various physical phenomena are all found…’, etc., but he doesn’t. On the contrary, he writes ‘when we say, man is mortal we mean that…‘ and so on. The former way of putting the point would have been the more consistent with the idea that there is a clear truth/method dividing line. However, the way Mill actually puts it might as well be rewritten as, ‘“this is true” is pretty much equivalent in meaning to “this procedure has been carried through”’. As this shows, it is the procedural element which does the real work in Mill’s account of truth. It’s hard to see how things could be otherwise. Mill may want to draw a conceptual line between method and truth but, since the former can be the only route to the latter the attempt to draw it can have no practical bearing. It follows that, although Mill’s ‘official’ position may be that truth is ‘out there waiting to be discovered’ —i.e. that route and destination are distinct entities— for all the difference it makes to scientific enquiry he might just as well have said that the destination is just the last part of the route.

6.5.2 An ambiguity inherited Present-day commentators on science and scientific method are the inheritors of an empiricist tradition which Mill himself did a great deal to shape, so it is hardly surprising that similar features should sometimes show up in their work. For example, take the following passage from Richard Dawkins’s River Out of Eden (1995): Show me a cultural relativist at thirty thousand feet and I’ll show you a hypocrite. Airplanes built according to scientific principles work. They stay aloft and they get you to a chosen destination. Airplanes built to tribal or mythological specifications, such as the dummy planes of the cargo cults in jungle clearings or the beeswaxed wings of Icarus, don’t. If you are flying to an international

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congress of anthropologists or literary critics, the reason you will probably get there—the reason you don’t plummet into a ploughed field—is that a lot of Western scientifically trained engineers have got their sums right. Western science, acting on good evidence that the moon orbits the Earth a quarter of a million miles away, using Western-designed computers and rockets, has succeeded in placing people on its surface. Tribal science, believing that the moon is just above the treetops, will never touch it outside of dreams. (Dawkins 1995:31–2) I think it is fair to describe Dawkins’s characterisation of science as representing a consensus view, so it is worth pausing to consider it more closely. It merits the initial comment that ‘cultural’ relativism is not, as Dawkins suggests, the issue. (How could it be when cultural relativism embodies such uncontroversial claims as the claim that certain practices and mores—religious and sexual—can differ from culture to culture? You don’t have to be a ‘hypocrite’ to recognise the obviousness of that.) On the contrary, the challenge Dawkins has to meet is presented by the claim that there can be no one settled standard of ‘truth’ or that there is no singly privileged ‘true’ description of the universe—‘epistemic relativism’ as I have been calling it. (So, cultural relativism only enters the picture where it is claimed that differing epistemological standards tend to go handin-hand with cultural differences.) 13 Secondly, and more to the point, notice how Dawkins’s argument creates a false appearance by confusing two quite different senses of the word ‘work’. One is the sense in which a scientific theory ‘works’ by accounting for the observed phenomena. The other is the sense in which a machine ‘works’ by doing what it has been designed to do. To appreciate the independence of these two senses you need only consider, for example, that even primitive tribespeople who have no knowledge of the relevant laws of hydro-dynamics— not even of Archimedes’s Principle—build canoes which actually float. (They have no working scientific theory but their canoes work.) Or again, in the nineteenth century, the dominant scientific picture of the universe was Newtonian. Since then, thanks to Einstein and others, it has been increasingly demonstrated that there are phenomena which do not fit this picture. Even so, railway locomotives built in the nineteenth century did, on the whole,

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succeed in hauling trains as they were designed to. (The relevant scientific theory has been shown not to work, but the machines worked even so.) This is not to deny that present-day aircraft designers derive support from up-to-date work in aerodynamics, but it does show that the relationship between the two sorts of work is less direct than Dawkins suggests. Specifically, the main question at issue is whether there is anything to be said for the ‘relativistic’ claim that different scientific theories can account for the same range of phenomena (do the same ‘work’), and you don’t falsify the claim simply by referring to the plain obvious fact that ‘the dummy planes of the cargo cults in jungle clearings’ don’t fly. Bear such points in mind, and it becomes much easier to see that Dawkins presents no convincing case against any form of relativism. I shall be returning to the arguments of this section so, if you will bear with me, I should like to dwell on Dawkins’s argument just a little longer. To appreciate the source of its failure more exactly, then, consider the difficulty with which it is crucially embarrassed thanks to the ambiguity of the phrase, ‘built according to’ in the sentence ‘Airplanes built according to scientific principles work’. This could be taken to mean (i) that aircraft fly because they are designed by people who know and understand the principles of aerodynamics and built accordingly; that is, because they are intentionally constructed in accordance with scientific principles. On the other hand, it could be taken to mean (ii) that aircraft fly because it just so happens that they are constructed in accordance with those principles, whatever the knowledge and intentions of their designers and builders may have been. To take interpretation (i) first, it is—of course—true that aircraft really are intentionally constructed in accordance with scientific principles. But what is the point of stressing the fact? Presumably, there would be no point unless we were supposed to draw a moral and this—presumably— would have to be the moral that machines only work where they are consciously and intentionally constructed in accordance with the relevant scientific principles. (The claim is—note—that ‘the reason you don’t plummet into a ploughed field’ is that engineers have got their sums right’: my emphasis). But if that were Dawkins’s claim it would be absurd, because he would be completely unable to account for the plain fact that canoes built by primitive tribespeople don’t sink like stones. If the claim were true, canoes would only float if they were consciously ‘built according to’ scientifically established principles of hydrodynamics. However—as noted a

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moment ago—even where the people have no knowledge of the relevant scientific principles, their canoes float all the same, so Dawkins would have to be denying the obvious. Alternatively, it could be that interpretation (i) is a misrepresentation of Dawkins’s real view, and that the latter is (ii) that aircraft fly and canoes float because, whatever their builders may believe—and even where the builders of the latter are completely ignorant of scientific principles —they are in fact constructed in accordance with those principles. I agree that this would be a fairer interpretation of Dawkins’s position, but the point to note now is that accepting claim (ii) means placing modern aircraft designers and primitive canoe-builders on exactly the same epistemic level. An example will help summarise the point. Suppose there is a tribe whose members say a prayer each time they launch a new canoe. Their purpose is to placate the river god. As the canoe floats into the water, they say, ‘Look! Our prayer worked!’ In line with claim (ii), Dawkins might argue that the tribespeople’s reason is not the real reason why the canoe floats. However—also in line with (ii) — he would have to concede that the real reason why planes fly might not be the one we think it is. Perhaps there is some other reason—a reason of which we are completely ignorant—and perhaps our faith in the principles of aerodynamics is just as much a superstition as the tribespeople’s belief in the river god. (The conjecture may strike you as incredible, fanciful, or wilfully perverse, but then hydrodynamics would seem just as incredible to the tribespeople.) It follows that Dawkins’s argument places him in a dilemma. Either he can’t explain why canoes float, or he has to admit the possibility of relativism. In conclusion, Dawkins’s dilemma reflects two conflicting ambitions on his part. One is to lay the ‘relativistic’ ghost. The other is to extol the virtues of science on the ground that its principles ‘work’. The two are incompatible because the notion of ‘working’ is itself irreducibly relativistic. It is the same contradiction which beset Mill’s argument in A System of Logic. As for the relevance of all this to Mill’s defence of the liberty of thought and discussion, it should be clear that if there is no such thing as a single version of the truth, ‘out there’ and waiting to be discovered—and, so far, we have no reason for thinking there is—the function of thought and discussion cannot be quite what Mill claims it to be. Far from dispelling the threat of epistemic relativism, the appeal to ‘hard’ natural science only serves to reinforce it.

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6.5.3 Does science always supply an appropriate model? However, it has to be added that this conclusion—the conclusion that an appeal to science cannot safeguard Mill’s argument against any perceived threat from epistemic relativism—is hardly surprising. Not only that, it is a conclusion which must be kept in perspective. To take the former point, the conclusion is hardly surprising because scientific investigation is essentially a question of testing descriptions which are, by their nature, tentative. (Empirical claims such as ‘the table I see right in front of me exists’, ‘there was the Holocaust’, ‘the moon is not made of green cheese’ are not, I think, genuine scientific hypotheses. Like scientific hypotheses, they ‘work’ in the sense that they match the phenomena, but there are no good reasons—other than rather sophisticated reasons which flow from philosophical scepticism—for treating them tentatively, as provisional.) Even the scientist who believes that there really is a single true description of things, ‘out there’ and waiting to be found, has to face the possibility that his or her preferred description will eventually be overturned and replaced by another which works better, in the relevant sense of ‘work’. But then, if you take the ‘jigsaw puzzle’ view, according to which scientific procedure is a matter of painstakingly assembling a picture, piece by piece, you have to face it that there are other possibilities. It could be that the same set of pieces can be combined in a number of ways to form a number of different pictures (i.e. that there are rival descriptions, each of which ‘works’ equally well). Again, it could turn out that there are different groups of pieces, each of which forms a different picture, and that none of the pictures connects with any of the others. 14 All this suggests that if you want to counter relativism then, contrary to what might have been your expectations, looking to science for help is looking in precisely the wrong direction. But, to turn from my conclusion’s unsurprisingness to the necessity to keep its implications for Mill’s argument in perspective, note that these implications can be tempered in two ways. The first is with the consideration that although there is a threat it is, perhaps, not such a serious threat, at least not where thought and discussion can be regarded as a technique for reaching descriptions which work. Of course, an epistemic relativist has to abandon the idea that there is a single possible description of the way things really are—Mill’s claim that ‘the well-being of mankind may almost be measured by

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the number and gravity of the truths which have reached the point of being uncontested’ has to go (Mill 1859:2, §32)—but even so, there remains a great deal of point in the search for working descriptions. To the degree that there is, Mill’s argument is left substantially intact. Secondly, in any case scientific procedure may not supply a good model from which it is possible to generalise to other areas to any great extent. Personally, I am unimpressed by the idea that it could be true for History that there is no single set of facts, ‘the truth’, to be uncovered.15 For that matter, nor would I appoint a defending lawyer with postmodernist views on epistemology were I to find myself accused of some crime. Moreover, it is not the case that all thought and discussion can be plausibly represented as the activity of formulating any sort of description. Take moral disagreement as an example. Whatever it is that people do when they argue over, say, the rights and wrongs of euthanasia, government policy towards the third world, or such-andsuch a person’s extra-marital sexual adventures, it is not at all obvious that what they are trying to do is get to a description, one which represents some given set of moral ‘facts’. All of this is in line with one of this book’s main themes, namely that the major defences of free speech are not so much mistaken as one-sided. They tend to underestimate the diversity of roles played by language in human life. The use of thought and discussion as a technique for arriving at descriptions—descriptions which account for observed phenomena—is just one such role.

6.6 EPISTEMIC RELATIVISM: RORTY’S REVISIONIST LIBERALISM 6.6.1 Relativism as ‘ironism’ At this juncture, it would be helpful to summarise the discussion of epistemic relativism so far. To begin with, then, you will recall that I introduced this type of relativism with the claim that, (i) because there can be different, incompatible, but equally tenable standards of evidence, there can be no single ‘true’ account of the way things are to which all chains of logical argument lead. This was the point I used the ‘true believer’ example to illustrate. As the discussion progressed, a further relativistic claim emerged. This was the claim that (ii) even if it is possible to draw a conceptual distinction between the meaning of

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‘proposition p is true’ and the method for determining p’s truth, there is no clear practical, as opposed to conceptual, way of determining the truth/method dividing line. You will only assert the truth of p once your preferred method has been followed through, so claim (ii) is—if you like—the claim that for practical purposes the destination is simply the last part of the route. The upshot of the discussion so far is that, if these claims are right, Mill’s argument has to be modified. Its insistence that more and more propositions will reach ‘uncontested’ status has to be abandoned, and it has to portray thought and discussion as the pursuit of working descriptions. Now, the modest epistemic relativism I have discussed up to this point, while it rejects the idea that there are common standards of evidence, continues to accord privileged status to common, publicly recognised standards of logical inference (such as ‘the law of the excluded middle’ according to which a proposition must either be true or false). It is possible to challenge this with a further claim, the claim (iii) that appeal to logical principles plays no more significant a role in the conduct of an argument than—say—rhetoric. When you supplement claims (i) and (ii) with claim (iii) you get a form of epistemic relativism which is more extreme than those I have considered so far. As an example of a philosopher who espouses this more extreme form of relativism, I shall consider Richard Rorty, who makes all three claims in his book Contingency, Irony, and Solidarity (Rorty 1989). I will first summarise Rorty’s position and I will then say why it is especially relevant to consider it at just this point in my discussion. Here is how Rorty summarises the current state of philosophy: Some philosophers have remained faithful to the Enlightenment and have continued to identify themselves with the cause of science. They see the old struggle between science and religion, reason and unreason, as still going on, having now taken the form of a struggle between reason and all those forces within culture which think of truth as made rather than found. These philosophers take science as the paradigmatic human activity, and they insist that natural science discovers truth rather than makes it. They regard ‘making truth’ as a merely metaphorical, and thoroughly misleading, phrase. (Ibid.: 3–4)

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And: Whereas the first kind of philosopher contrasts ‘hard scientific fact’ with the ‘subjective’ or with ‘metaphor’, the second kind sees science as one more human activity, rather than as the place at which human beings encounter a ‘hard’, nonhuman reality. On this view, great scientists invent descriptions of the world which are useful for purposes of predicting and controlling what happens, just as poets and political thinkers invent other descriptions of it for other purposes. But there is no sense in which any of these descriptions is an accurate representation of the way the world is in itself. These philosophers regard the very idea of such a representation as pointless. (Ibid.) I think it is worth remarking that Rorty’s representation of science as the activity of inventing ‘descriptions of the world for purposes of predicting and controlling what happens’ seems pretty well equivalent to Dawkins’s representation of it as the search for explanations which ‘work’. So, for all Rorty’s insistence that you can do science without believing in the possibility of achieving ‘an accurate representation of the way the world is in itself, and for all Dawkins’s invocations against ‘cultural relativism’, the two hardly differ on this crucial point. It is also worth remarking that Rorty’s claim that truth is ‘made rather than found’ can carry with it an overtone. It can suggest that truth is ‘just’ or ‘only’ made. However, we shouldn’t let this mislead us into thinking that scientists and others just make things up as they go along. There are, no doubt, many constraints placed by nature on the range of explanations which work. Nor should we assume Rorty’s own view to be that scientists are under licence to exercise complete free play with their imaginations. However, he does appear to believe that things are relatively free of constraint outside science, for Rorty describes himself as an ‘ironist’, that is, as someone who ‘realises’ that ‘anything can be made to look good or bad by being redescribed’ and who renounces ‘the attempt to formulate criteria of choice between final vocabularies’ (ibid.: 73). On his account, intellectual progress is less a question of ‘argument’ than of redescription, ‘the literalisation of selected metaphors’. Thus, ‘rebutting objections to one’s redescriptions of some things will be largely a matter of redescribing other things’,

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and, as noted, ‘trying to outflank the objections by enlarging the scope of one’s favourite metaphors’ (ibid.: 44). (Rorty professes a debt to Nietzsche, whose ‘definition of truth as a “mobile army of metaphors”’, according to Rorty ‘amounted to saying that the whole idea of “representing reality” by means of language, and thus the idea of finding a single context for all human lives, should be abandoned’.) (ibid.: 27). So, that is why Rorty holds that truth can never be ‘found’, for, what counts as truth can only be a function of the discourse—the ‘language game’ —in which one happens to be engaged. It is held to follow, accordingly, that, we should be content to call “true” or “good” whatever is the outcome of free discussion. (Ibid.: 84) Now, the reasons why I have chosen to discuss Rorty at just this point are as follows. First, Rorty’s thesis embodies a more radical and extreme form of epistemic relativism than those already considered. As I shall indicate, it is extreme enough to pose a different, and more serious, threat to Mill’s argument, so it merits a separate treatment. Second, we can take Rorty to represent what has come to be known as ‘postmodernism’. Postmodernism is an influential movement, in philosophy and in certain other areas of intellectual life, so we should consider it. Not that I mean to suggest that everything I shall have to say about Rorty goes equally for all postmodernists, but I do think that quite a lot of what I shall have to say about him applies quite accurately to a sizeable amount of postmodernist theory. (Rorty’s ironism strongly reflects—say— Derrida’s critique of ‘post-Enlightenment’ thought for being too ‘logocentric’, as well as for prioritising ‘speech’ over ‘writing’; his account of intellectual change as the constant interplay of ‘texts’ resembles Foucault’s argument that, contrary to ‘the great biological image of a progressive maturation of science’, what counts as ‘truth’ is a function of the political apparatus of power; it also resembles Lyotard’s argument that although ‘science has always been in conflict with narratives’ it is, itself, a ‘legitimating narrative’.) (Derrida 1974; Foucault 1972; Lyotard 1979).16 The third reason for considering Rorty—and the most interesting from our point of view—is his belief that his ‘ironism’ is consistent with a Millian liberalism. He writes:

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It is central to the idea of a liberal society that, in respect to words as opposed to deeds, persuasion as opposed to force, anything goes. This openmindedness should not be fostered because, as Scripture teaches, Truth is great and will prevail, nor because, as Milton suggests, Truth will always win in a free and open encounter. It should be fostered for its own sake. A liberal society is one which is content to call “true” whatever the upshot of such encounters turns out to be. That is why a liberal society is badly served with an attempt to supply it with “philosophical” foundations. For the attempt to supply such foundations presupposes a natural order of topics and arguments which is prior to, and overrides the results of, encounters between old and new vocabularies. (Rorty 1989:51) And later: We ironists who are also liberals think that such liberal political freedoms require no consensus on any topic more basic than their own desirability. From our angle, all that matters for liberal politics is the widely shared conviction that, …we shall call “true” or “good” whatever is the outcome of free discussion—that if we take care of political freedom, truth and goodness will take care of themselves. “Free discussion” here does not mean “free from ideology”, but simply the sort which goes on when the press, the judiciary, the elections, and the universities are free, social mobility is frequent and rapid, literacy is universal, higher education is common, and peace and wealth have made possible the leisure necessary to listen to lots of different people and think about what they say. (Ibid.: 84) In Rorty’s opinion, ‘J.S.Mill’s suggestion that governments devote themselves to optimising the balance between leaving people’s private lives alone and preventing suffering’ is ‘pretty much the last word’ (ibid.: 63). But, as the above passages show, he also thinks that Mill’s ‘rationalistic’ account of thought and discussion can be replaced by a postmodernist story about the free interplay of

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discourses. Rorty clearly believes that the Millian liberal vision is left more or less intact once the substitution has been made. Let us now consider this.

6.6.2 From rationalism to ironism? In summary, then, the main differences between Mill’s ‘rationalism’ and Rorty’s ‘ironism’ are as follows. First, Mill holds that a proposition is true when it corresponds to a fact. He holds that the application of ‘rational’ techniques, including thought and discussion, is the appropriate procedure for establishing that propositions are true in this sense and that there is, thus, a conceptual line dividing truth from method. By contrast Rorty completely obliter-ates the distinction. In his view, ‘we should be content to call “true” or “good” whatever is the outcome of free discussion’ (ibid.: 84). Secondly, because he distinguishes truth from method Mill is able to represent thought and discussion as an activity with a stopping point. That point is reached when a proposition’s truth is defini-tively established; that is, when it achieves ‘uncontested’ status. This contrasts with Rorty’s account, according to which the process of intellectual change is potentially never ending. If there is ‘no answer to a redescription save a re-redescription’, as he claims (ibid.: 80), then there can be no answer to a re-redescription save a re-re-redescription, no answer to a re-re-redescription save a re-rere-redescription, and so on ad infinitum. Thirdly, and also because he distinguishes truth from method, Mill can treat standards of evidence and principles of logic as authoritative. For him, genuinely rational argument proceeds by appealing to such principles. Against this, Rorty can grant equal status to less rational techniques of persuasion. This is because he thinks of intellectual disagreement as the attempt to make your own position look good and your opponent’s look bad with the help of a redescription. This is a matter of persuasion because you can only make your position look good— and your opponent’s bad—to others, so the success of your attempts will depend on how persuadable those others are, and by means of what techniques. Now, as I have said, I am sceptical of Rorty’s claim that a view of the world which remains faithful to the spirit, if not the letter, of Mill’s is left when ironism is substituted for rationalism. There are two reasons why. The first relates to the last feature noted in the preceding summary, namely Rorty’s refusal to draw distinctions of

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privilege between different methods for ‘getting someone to believe’ something. Suppose that person A is attempting to get person B to believe that proposition p is true. A might do this by involving B in thought and discussion. Alternatively, A might use rhetoric, subtle appeals to B’s vanity or self-interest, or other ‘non-rational’ techniques of persuasion. A might use Rorty’s favoured technique of ‘trying to outflank the objections by enlarging the scope of one’s favourite metaphors’ (ibid.: 44). Rorty’s position contrasts with Mill’s, according to which, in the first case, A is trying to get B to see that p stands the test when measured against genuinely authoritative (because genuinely ‘rational’) standards of evidence. In Mill’s view, thought and discussion is, therefore, superior to and quite distinct from any of the latter methods. But with Rortyan relativism the distinction disappears along with the authoritative standards, and we are left with nothing more than ‘different methods for getting someone to believe something’. Provided there is nothing coercive about the relation between A and B, all is supposedly in order. Thought and discussion even becomes a sort of rhetoric itself. Whether or not there is anything to be said for Rorty’s account of intellectual change, I don’t think this is a conclusion with which he should be happy; at least, not if he wants to be considered a liberal. The trouble is that liberalism is a value system which attaches high priority to individual self-government or personal autonomy. The main liberal philosophies—Locke’s, Mill’s, Rawls’s —each contain an interpretation of this conception and accord it a central place in the argument.17 However, it quite often happens that nonrational techniques of persuasion threaten that very same autonomy. It follows that Rorty cannot endorse non-rational techniques and claim to be a liberal at the same time. This implication of Rorty’s argument is masked by his noticeable tendency to rely on some rather clear cut, ‘all or nothing’ distinctions. Take his contention that ‘It is central to the idea of a liberal society that, in respect to words as opposed to deeds, persuasion as opposed to force, anything goes’ (ibid.: 51; my emphasis). The trouble with this decisiveness is that it cannot be supported by his own relativism which, as I have said, cannot justify clear distinctions between different methods of ‘getting someone to believe something’. Let us consider the point a little more closely and ask what divides (i) re-describing something to make it look good (or bad), from (ii) getting someone to accept one’s position by surreptitiously flattering

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their vanity, from (iii) using ‘subliminal’ techniques to sell one’s argument, from (iv) changing people’s ideas with the help of a drug, slipped into the water supply? (Remember that a Rortyan relativist can’t hang an answer to this on the simple point that some of these techniques are ‘more rational’ than others.) Which of these techniques are verbal, and which are not? Which, if any, are coercive? (All, none, some of them?) I don’t believe there are easy, straightforward answers to these questions, and the fact undermines what would undoubtedly be Rorty’s response to the objection I am raising, the response that, under liberalism, all is in order provided encounters between those who hold opposing views are ‘free and open’. Such a response would beg the question, for I am asking what freedom and openness could possibly amount to where the point is not necessarily rational persuasion, but just to ‘get someone to believe something’. To say the least, it is arguable that any attempt by one person to persuade another, other than by an appeal to rational standards, must inevitably involve a certain manipulative element— an element which is, in some sense of the word, ‘coercive’ —even if it is only slightly so. My second reason for objecting to Rorty’s claim that epistemic relativism leaves liberalism more or less untouched is that he gives no really convincing explanation of why anyone should be encouraged to play the redescription game. At least Mill manages to connect thought and discussion with some lofty ideals—truth and, through that, social progress and human happiness—and, although there may be some room for a charge of arbitrariness here, at least one can see the point. (Had Mill defended ignorance, decline, and misery, he would have been far less persuasive.) But, by contrast, what point can there be in anyone’s playing Rorty’s variant—the game in which metaphors are literalised and extended in scope, redescriptions of some things are rebutted by redescriptions of other things, redescriptions are answered with re-redescriptions, these with re-re-redescriptions, and so on? We need a better reason than fun, but there doesn’t appear to be one. It is as if Rorty has invited us to a party, the sort of party which would appeal to philosophers and other members of ‘the chattering classes’. You know the sort of thing. (After all, you are reading this book.) Everyone will get a little drunk and before you know it they will be literalising metaphors as if there was no tomorrow. Redescriptions will be answered by re-redescriptions— re-reredescriptions by re-re-re-redescriptions—until it is almost dawn.

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A good time will be had by all. But what if you don’t want to go? You would prefer to take a solitary walk, exercising the rotweiler. Or, what if you are like Goering and reach for your revolver every time you hear the word ‘culture’? Rorty needs a reason why you should go even so, or—at the very least—why the neighbours who are occasionally kept awake by the noisy goings on should tolerate them. With his adamant rejection of all ‘foundationalism’ it is not at all obvious that Rorty can supply one. And if there really is no such reason the situation is serious for all who look to liberalism to live up to one of its traditional claims: the claim to serve as a fortress against the Goerings of this world and the systems which support them. 18 Finally, it is worth keeping in mind that the arguments of philosophers can have effects which extend beyond the walls of the seminar room. The following passage is taken from a short piece by Salman Rushdie. In it, Rushdie treats religion in much the way Rorty treats science. Whereas religion seeks to privilege one language above all others, one set of values above all others, one text above all others, the novel has always been about the way in which different languages, values and narratives quarrel, and about the shifting relations between them, which are relations of power. The novel does not seek to establish a privileged language, but it insists on the freedom to portray and analyse the struggle between the different contestants for such privileges. (Rushdie 1990:7) Rushdie adds: Literature is the one place in any society where, within the secrecy of our own heads, we can hear voices talking about everything in every possible way. The reason for ensuring that privileged arena is preserved is not that writers want the absolute freedom to say and do whatever they please. It is that we, all of us, readers and writers and citizens and generals and godmen, need that little, unimportant-looking room. (Ibid.: 16)

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The defence of literature parallels Rorty’s, as does the reason for which it fails, which is that the party to which we are invited would be a great party, but only if you like that sort of ‘literary critical’ party. And it could be that you don’t. You certainly won’t if you are an Ayatollah with a pressing need to maintain political stability and —more than that—no sympathy or understanding for that alien, ‘western’, cultural form, the novel. Let me stress that this is not an attack on Rushdie—far from it. I am simply suggesting that expecting a man to defend himself against his enemies with that argument is like throwing him naked to the lions.

6.7 CONCLUSION: ARE WE TRAPPED IN A HOUSE OF MIRRORS? This has been a long chapter, so I will begin with a summary. You will recall, then, that I opened the chapter by questioning the value the classic defence of free speech accords to truth. In Mill’s version of that defence, truth—construed in ‘rationalistic’ terms as logically or experimentally discoverable truth—is valued because its discovery supposedly facilitates progress and helps increase the general happiness. (There are, no doubt, other reasons for which truth can be valued, but those reasons are not advanced by the classic defence, and we have yet to consider them.) The bulk of the chapter has been taken up with an assessment of the extent to which the classic defence is threatened by two forms of relativism, what I have called ‘value relativism’ and what I have called ‘epistemic relativism’. I haven’t much used the phrase ‘cultural relativism’, although value relativism—the thesis that values can vary from culture to culture—is certainly a form of cultural relativism. As for epistemic relativism, it can also be treated as a form of cultural relativism where it maintains that variations in epistemological standards are governed by cultural variations. I am sure that there is much more to be said both for and against these forms of relativism than I have said here. However, my aim has not been to treat them exhaustively, but only to assess their relationship to the classic defence. The conclusions I have reached are as follows. First, value relativism threatens to undermine the classic defence. This is because it carries with it the suggestion that there is no rational foundation for preferring a liberal system of values—a system in which free speech carries an especially privileged status— to any other value

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system. Second, in its moderate form epistemic relativism threatens the classic defence with its implication that there is no single destination—‘the truth’—to which the road of logical reason leads. Third, there is a more extreme form of epistemic relativism which completely undermines the classic defence. Contrary to Rorty, it does not appear possible to remain a Millian liberal while at the same time endorsing a postmodernist epistemology. Now, there is nothing manifestly absurd or silly about either form of relativism. Value relativism’s claim that dominant values can vary across cultures is—I should have thought—just obviously true. It is a plain fact that the behaviour an ancient Greek noble would have regarded as virtuous is different from behaviour a Victorian entrepreneur or a 1960s feminist would have viewed in that light. Not only that, dominant values are what partly define a culture, so how could the claim not be true? As for epistemic relativism, the claim that (within science and outside it) the world is open to competing, incompatible, but equally tenable descriptions, the jury is still out on that one. However, there are at least some good reasons which can be put forward in favour of it. So, to the extent that these versions of relativism are credible, the classic defence of free speech really is undermined by them. But does this mean that we should panic, that we are doomed to remain forever trapped in a valueless, truth-free, house of mirrors, where everything is just what we have made it appear to be, and nothing more? I don’t think so. It seems to me that the key is to get things into perspective, and the following remarks are intended to suggest how this can be done. Please bear in mind that I am offering them in an extremely tentative spirit. So, the first remark is that we do not have to assume that there is a clear-cut line dividing the absolute from the relative. If you make the assumption, you could be liable to panic, because it can lead you to believe that the only way to avoid being plunged into an abyss of hopeless confusion is to maintain a rigid posture of strict moral and epistemic absolutism. 19 But you don’t have to make the assumption, because it could be that the relativity of a moral or factual judgement to a culture is a matter of degree, of more and less. My second remark concerns value relativism. It is the observation that the ‘either-or’ assumption just referred to is certainly false where that type of relativism is concerned.20 On the contrary, it makes more sense to think of moral principles as ranged along a continuum. At the very tip of one end, the ‘absolute’ end, lie values which any

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culture must hold. For example, it seems right to suppose that every culture must have some system—some set of laws and/or customs— for regulating relations between the sexes, as it must for the rearing of children. (How could there even be a culture in the absence of some such system?) But then some cultures practise monogamy, others polygamy—in the modern ‘West’ the nuclear family prevails, in hunter-gatherer tribes children were reared more collectively— so there is already a relativity here. Principles and rules describing such differing kinship systems will not lie at the tip of the continuum, but they will—presumably—lie near the ‘absolute’ end because the necessity for having some system will give them a certain point. Right at the other end of the continuum, at the ‘relative’ tip, there will lie practices and principles which have no point, but which are there simply as a result of custom and habit. For example, I recently came across a reference to the Ethiopian Dorze who, according to one authority, ‘sometimes walk around with lumps of butter on their heads, apparently without knowing why they do so’ (Beattie 1984:13–14).21 Closer to home, take the insistence within certain corporations that male managers should wear suits and ties. If nothing else, the existence of a continuum suggests that, although morality can vary across cultures, there are constraints on the degree to which variation is possible. Thirdly, let me briefly draw your attention to a couple of features of religious belief. Please bear in mind that I am not trying to define religious belief, nor am I saying that these features are peculiar to it—nothing so ambitious. I am just pointing out that they tend to be characteristic of what we tend to count as a religious belief. (They are, if you like, features of the concept ‘religious belief’.) The first feature is this: a religious belief tends to be the property of a specific identifiable group. It is religious if it is a Jewish belief as opposed to a Christian belief or an Islamic belief, for example. This is so much the case that we often identify individuals, as they identify themselves, by the religious beliefs they hold, as in ‘I am Jewish/a Christian/a Muslim’, and so on. In this respect, they tend to differ from other beliefs, including beliefs which are held because they are thought to have been historically or scientifically established, and not because they are especially associated with a religion. The latter tend to be spread amongst the population in a more diffuse, less localised way. As for the second feature, it is characteristic of a religious belief that, in order to hold it, you must also hold a whole series of other beliefs which are related to it, and which are also the

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property of a specific identifiable group. Take the doctrine of transubstantiation, the doctrine that in taking Holy Communion you are—literally—consuming the body and blood of Christ. In order to believe that you have to be a Christian and, not only that, but a Christian of a certain sort, a Roman Catholic. If you are, you must also believe in God, that Jesus was the son of God, that the priests of your church have a certain authority, and so on. (Armed with these beliefs you can go into a church and see a bishop administering the blood of Christ to communicants. Without them, you will just see a row of kneeling people being given a sip of wine by a man in a pointed hat.) Now note that it is consistent with the above that there can be cultural variation in what counts as a religious, and what as a scientific, belief. Recall the canoe people for a moment, the ones who believe there is a river god who must be prayed to each time a canoe is launched. Suppose these people to have lived in prescientific times, tens of thousands of years ago. In that case, and if what I have said is right, their belief would not have been, strictly speaking, religious. It would have been a scientific belief, or at least a ‘sort of scientific belief. I say this because I assume that such people would have held an animistic world view; that is, a view according to which each natural phenomenon, each pool of water, each tree, has an animating spirit. Their belief in the river god would thus have fitted in with a general perception of the way the world is. It would not have been peculiar to a subgroup. (Of course, trial and error would have held a different significance for such people. If the canoe sank, they would just have said ‘The god was in a bad mood today, and wanted to spite us’. If it floated even when they had forgotten to pray they would have said ‘The god was feeling kind’. There would be no ‘theory’ to be ‘falsified’.) But note that it also follows from what I have said that if some cult in present-day California were to start worshipping a canoe god (for whatever reason) that would count as the expression of a religious belief. So it seems that what counts as a religious belief can vary with time. (Likewise, looking back at the canoe people, we might say, ‘Their religion included belief in a river god’, but canoe people themselves would not have seen anything especially religious about the belief.) I know these closing remarks are inconclusive, but they do suggest that one can endorse a degree of relativism without finding oneself trapped in a house of mirrors. They also suggest a possible method

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for distinguishing the arbitrary from the non-arbitrary or, to put it more accurately, the more from the less arbitrary. It is not a method which attempts to supply knowledge and morality with foundations via a metaphysical argument, but one which appeals to certain inescapable, all-pervasive features of human life and the human condition. (For example, in the case of value relativism it is such features which determine the place of a belief on the absolute-relative continuum.) Because the value of free speech and the liberal world view are so intimately bound up together—so that the former is inevitably weakened where the latter is undermined— these are not insignificant reflections.

FURTHER READING The question of whether liberalism can be given a rational foundation is discussed in John Gray’s Liberalisms (1989). Avineri and de Shalit’s Communitarianism and Individualism (1992) contains essays by Sandel, Charles Taylor, MacIntyre, and Michael Walzer, all leading communitarians. MacIntyre sets out his ideas in a trilogy beginning with After Virtue (1981) and continuing with Whose Justice, Which Rationality? (1988) and Three Rival Versions of Moral Enquiry (1990). On these, a good collection of critical essays is Horton and Mendus’s After MacIntyre (1994). See also Amy Gutmann’s persuasive essay ‘Communitarian Critics of Liberalism’ (1985). Influential contemporary essays in the philosophy of science include Kuhn’s The Structure of Scientific Revolutions (1970) and Feyerabend’s Against Method (1975). Both are strongly relativistic. Even Popper’s ‘falsificationism’ has a relativistic element. For this see his The Logic of Scientific Discovery (1959). For Rorty’s ‘ironism’ and its relation to his political views, see also the essays contained in Part Three of his Objectivity, Relativism, and Truth (1991). For criticism of Rorty see Norman Geras, Solidarity in the Conversation of Human Kind (1995b) and the collection edited by Alan Malachowski, Reading Rorty (1990). On postmodernism I have found Lawrence Cahoone’s anthology From Modernism to Postmodernism (1996) invaluable. In Censorship: The Knot that Binds Power and Knowledge (1991) Sue Curry Jansen’s discussion brings a number of postmodernist themes to bear on the topic of censorship.

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I opened Part One by remarking that it is risky to rely on an old map. By the same token, it is even more risky to place your trust in a map which was not, itself, based on a new survey of the terrain, but which is a modified and annotated version of an even earlier map. With that in mind, we now go on to compare and contrast Mill’s argument for the liberty of thought and discussion with its ancestor, the argument of John Milton’s essay, Areopagitica (Milton 1974) [1644].1 By the end of this chapter, it should be clear just how far Mill was placing his confidence in a map which had already started to go out of date when he was writing.

7.1 ‘ONE DISCUSSION MORE’ The place to start is with the contrast between the historical circumstances which prevailed when each work, respectively, was written. The earlier, Areopagitica, was Milton’s thunderously contemptuous response to a parliamentary ordinance of 1643. Parliament had come up with the proposal that books should only be published after having first received the permission of some religious or state authority. (Milton’s contemporaries would scarcely have differentiated the two.) This method of censorship was to have been modelled on the system which had been prevalent in the Catholic world since the sixteenth century and enthusiastically enforced by the Inquisition—as well as by other organisations not exactly renowned for their liberal broadmindedness. (In Milton’s view, the proposal should have been anathema to the English parliament, dominated by Puritanism as it was. As you will realise, the Civil War between king and parliament had broken out just previously, in 1642. Milton was a supporter of the parliamentary side.) So, as a first contrast we can note that whereas Areopagitica is a direct response to an immediate threat of censorship by a very

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specific method—the suppression of books by authority—this is not so in the case of On Liberty’s second chapter. As we have seen, the latter is a defence of something far more general and vaguely specified: ‘the liberty of thought and discussion’. It is equally relevant to take note of the differences between the intellectual climates which predominated when each work was written. In Milton’s case, the climate was predominantly theocentric. Neither Milton nor his contemporaries would have drawn clear lines between the religious and—for example—the political, the ethical, or the scientific. Out of these, the religious perspective would have tended to take priority and colour their perception of the other categories. (As evidence—if evidence is required—one need only consider Areopagitica’s wealth of biblical allusion. It is patently obvious that Milton could take it for granted that his audience would have an easy grasp of references which were to become obscure and arcane to later generations.) For our purposes, one consequence of this theocentricity is especially worth noting. It meant that state suppression of politically ‘subversive’ literature would have tended to be both that and, at the same time, the suppression of the expression of religious belief. By contrast, Mill could assume the relevant lines to be clearly and distinctly drawn; so much so that he could open his second chapter with the following confident assertion: The time, it is to be hoped, is gone by when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them and determine what doctrines or what arguments they shall be allowed to hear. (Mill 1859:2, §1) True, there are, quite often, good reasons for discounting details of historical circumstance when it comes to assessing the merits of an argument or theory, its accuracy or internal consistency. (For example, Newton’s Law of Gravity would hold for just the same range of phenomena, whether or not the story about Newton and the apple is true. It is immaterial—even—that the law was formulated by Newton, and not by someone else.) But the rule does not hold here. To compare Mill’s version of the classic defence with Milton’s

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is to tell the story of what happens to an argument when it travels from a predominantly theocentric to a predominantly secular intellectual context and, in this case, the argument itself is affected. As I shall show in this chapter, the main results of the transposition are—firstly—that, even where there are close parallels between the specific arguments deployed by Milton and Mill, those arguments lose a certain conviction and force in the latter’s hands. Secondly, the change of context also helps explain the presence of certain major tensions in Mill’s argument and, thirdly, it helps explain why Mill so conspicuously misses the target which—on his very own account—he is most concerned to hit. In summary, my point is that the self-deprecating semi-apology with which Mill introduces his second chapter is misplaced. Mill writes, Those to whom nothing I am about to say will be new may, therefore, excuse me if on a subject which for now three centuries has been so often discussed I venture on one discussion more. (Ibid.: 1, §15) It is true enough that Mill’s argument follows the broad lines of Milton’s quite closely, but—more than that—the new setting gives a familiar script a changed significance.

7.2 PARALLELS AND PERSPECTIVE 7.2.1 A shift in the arguments As I have just remarked that Mill’s argument follows the broad lines of Milton’s, let me now illustrate the point by drawing your attention to some parallels. To start with, then, note that each writer founds his case on the idea that the pursuit of truth is the painstaking attempt to assemble (in Milton’s case, reassemble) the scattered fragments of a greater whole. In other words, each holds a ‘jigsaw puzzle’ view of the pursuit of truth, although Milton’s preferred metaphor is not the painstaking piecing together of a jigsaw but the reassembling of a dismembered virgin. He writes, Truth indeed came once into the world with her divine Master, and was a perfect shape most glorious to look

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on: but when he ascended, and his Apostles after him were laid asleep, then strait arose a wicked race of deceivers, who as that story goes of the Ægyptian Typhon with his conspirators, how they dealt with the good Osiris, took the virgin Truth, hewd her lovely form into a thousand peeces, and scattered them to the four winds. From that time ever since, the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled body of Osiris, went up and down gathering up limb by limb still as they could find them. We have not yet found them all, Lords and Commons, nor ever shall doe, till her Masters second comming; he shall bring together every joynt and member, and shall mould them into an immortal feature of loveliness and perfection. (Milton 1974:234–5)2 Mill is more prosaic. (You could hardly be less prosaic.) According to Mill, it is frequently the case that ‘conflicting doctrines, instead of being one true and the other false, share the truth between them’, so that ‘the nonconforming opinion is needed to supply the remainder of the truth of which the received doctrine embodies only a part’, and he adds, They are a part of the truth, sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjointed from the truths by which they ought to be accompanied and limited. (Mill 1859:2, §34) This is the argument Mill summarises as the second of his four ‘grounds’ for the liberty of thought and discussion. Still, perhaps we shouldn’t be too surprised by this particular parallel between the two writers, as the jig-saw puzzle view is a popular way of portraying the search for truth. More instructive, and sometimes more striking examples, are revealed by the fine detail. Take ‘the infallibility argument’. Milton raises the following rhetorical question: How shall the licencers themselves be confided in, unlesse we can conferr upon them, or they assume to

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themselves above all others in the Land, the grace of infallibility and uncorruptedness? (Milton 1974:217) The question roughly corresponds to Mill’s first ground, the assertion that,

All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common. (Milton 1859:2, §3,) Notice how the change in perspective alters the force of the argument here—or should I say notice how, with the changed context, we get a different argument? To take Mill first, we have already noted some time ago that—for the sake of accuracy if nothing else—his version of the infallibility claim has to be qualified in certain ways.3 For a start, if you take the claim literally, precisely as it is phrased, then it is just false that every instance in which the expression of an opinion is prevented by an authority is a case of the assumption of infallibility. Scanlon’s example of the misanthropic inventor who discovers ‘a simple method whereby anyone could make nerve gas in his kitchen out of gasoline, table salt, and urine’ is quite sufficient to illustrate the point (Scanlon 1972:211). If the inventor’s ‘opinion’ is censored by authority, that is not because it is false but because it is true and because, further, its dissemination would be dangerous. Likewise, a schoolteacher would be perfectly justified in preventing you from telling the kids where they can go to buy drugs, and the reason why has nothing at all to do with the possibility that your information could be wrong. On the contrary, the teacher would be the more justified the more obvious it is that your information is correct. Then again—and allowing for the fact that blanket suppression, unlike suppression in particular instances, can sometimes amount to the assumption of infallibility—it remains the case that not all opinions are equally questionable, or for the same reasons. For example, ‘opinions’ that the Holocaust took place can only be doubted with the help of Cartesian scepticism. Such considerations deprive Mill’s claim of a certain force. Still, these arguments have been rehearsed once already, and

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the point now is the comparison with Milton, to whom no such reservations seem to apply. So, if Milton is far more persuasive, why should this be? I think there is a twofold explanation. First, Milton gains sharpness by keeping his target restricted. Thus, whereas Mill condemns all silencing of discussion, Milton’s fire is reserved solely for ‘the licensers themselves’, that is, for the individuals Cromwell was intending to appoint as censors. This is realistically localised, and Milton’s case is further reinforced by the detail he supplies; for example, when he writes of the censor that, If he be of such worth as behoovs him, there cannot be a more tedious and unpleasing journey-work, a greater loss of time levied upon his head, then to be made the perpetuall reader of unchosen books and pamphlets, oftimes huge volumes. (Milton 1974:222) One can only take Milton’s point when he adds, a little later, that we may easily foresee what kinds of licencers we are to expect hereafter, either ignorant, imperious and remisse, or basely pecuniary. (Ibid.: 223) Anyone who has brushed with officious petty bureaucracy— however slightly—can only share Milton’s pessimism. However, none of this would be sufficient were it not fortified by a second feature of Milton’s work. This is that, in this passage as throughout his argument, he tends to prioritise a certain type of knowledge, namely moral knowledge, knowledge of the difference between vice and virtue and consequently of how to behave. The licensers would not, on the whole, have been vetting scientific texts (recipes for nerve gas or maps showing where to get the drugs). Or to put it another way, to the extent that they were, the ‘scientific’ texts confronting them would have tended to contain a strong ethical and theological mix. The licensers’ main job would therefore have been the protection of virtue. So, the ‘infallibility’ mainly at stake is moral infallibility. Milton’s argument carries force because it really is ridiculous to think that someone who works as a censor for money must automatically acquire supreme moral superiority— become,

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as Milton puts it, ‘above all others…in infallibility and uncorruptedness’ (ibid.: 217; my emphasis). In summary, then, it is actually true that the suppression of an opinion that such-and-such an action is morally right, or that it is virtuous, is necessarily an unwarranted assumption of one’s own infallibility, even though this is not true—as Mill says it is—for all suppression of opinion. Of the two arguments, Milton’s is the more persuasive because it is restricted to the former. A further example of parallel arguments would help to reinforce my main point, so consider—just briefly—‘the argument from dead dogma’. Milton writes, Well knows he who uses to consider, that our faith and knowledge thrives by exercise, as well as our limbs and complexion. Truth is compar’d in Scripture to a streaming fountain; if her water flow not into a perpetual progression, they sick’n into a muddy pool of conformity and tradition. A man may be a heretick in the truth; and if he beleeve things only because his Pastor sayes so, or the Assembly so determins, without knowing other reason, though his belief be true, yet the very truth he holds becomes his heresie. (Ibid.: 230–1) This parallels the claims Mill summarises with his third and fourth ‘grounds’; for example, the claim that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth. (Mill 1859:2, §21) But, for all the similarity, Milton escapes an objection to which Mill’s claim is potentially exposed, namely that it is simply biased in favour of certain intellectual virtues. Thus, the trouble with Mill’s argument is that he has no convincing answer to the question of what is wrong with taking ideas on trust. Consider: it is almost certainly the case that most people take it for granted that the conclusions Einstein drew when he worked out his special theory of relativity are true (and that’s just ‘most people’ who have heard of the special theory of relativity.) I certainly do. Moreover, I

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couldn’t possibly defend my belief because I am completely incapable of grasping the sort of mathematics involved, and nor—I am sure— could most people. (If they could, then Einstein would not have been the genius he actually was.) Now, if Mill is right about the evils of ‘dead dogma’ —of taking things on trust, and so forth— then we are all under a moral obligation to get to grips with Einstein’s theory. But, so far as I can see, there is no such obligation. To reinforce the point, consider also that many ordinary people tend to take a received body of belief on trust and are all the happier for doing so. More enlightened individuals—Mill, for example—may think those beliefs insufferably superstitious, but it doesn’t follow that those who hold them are under an obligation to question them. Of course, it could well be that the world needs intellectuals, and Mill’s ‘thought and discussion’ argument certainly entitles him to draw the conclusion that there should be some people—a special cadre of intellectuals, for example—who make it their business to pursue truth. But Mill needs more than that to sustain his ‘dead dogma’ argument. Where a ‘true opinion abides in the mind, but abides as a prejudice, a belief independent of, and proof against, argument’, Mill holds that ‘this is not the way in which truth ought to be held by a rational being’ (ibid.: 2, §22). If that is right, what he needs to show is that, for each individual, that individual is morally at fault unless he or she is constantly calling beliefs into question. But there is no such reason (or, at least, no nonarbitrary reason). But Milton’s argument escapes a parallel difficulty. This is because, unlike Mill, Milton is not primarily concerned with the general happiness, or with progress, or, as a consequence, the sort of knowledge which tends to facilitate progress. His paradigm of knowledge is not scientific or technical knowledge, knowledge of how the universe is structured or of how to exploit nature more efficiently. Milton is primarily concerned with virtue; that is, knowledge of the difference between good and evil, knowledge of how to behave. There is a difference. Whereas there is no obvious moral obligation, binding on everyone, to acquire (scientific or technical) knowledge that such-and-such facts are the case it is, by contrast, necessarily true that one is under a moral obligation to acquire knowledge of how to behave morally. Denying the point is more or less equivalent to denying the very existence of moral obligation itself. In conclusion, I think I have said enough to show that Mill’s version of the classic defence loses a certain power to convince,

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thanks to its having come adrift from the highly specific context in which Milton anchored it, and that this happens even at those junctures where the two versions exhibit close parallels. There are many other parallels with which the point may be illustrated, and I could continue in this vein. However, I am not trying to defend or illustrate a thesis according to which Milton exerted some sort of undue ‘influence’ over Mill, so I shan’t draw up a full list. (If you are interested, though, you can turn to the Appendix.)

7.2.2 Structural tensions If it is right to think of Mill as having imported an argument from a theocentric to a predominantly secular context then we have an explanation for more than individual weaknesses which show up at specific points. It also becomes possible to account for perplexing features which show up at a more general level when you take a few paces back to consider the argument as a whole. One of the most striking is that Mill writes throughout as if he is defending a religious ‘liberty of conscience’ which is in imminent danger of repression by a religiously intolerant authority (such as a censor or ‘licenser’). I am not just thinking of his high, ‘churchy’ tone. It is equally noticeable that, whenever Mill chooses to illustrate his argument with an example, real or imaginary, it is almost invariably the case that he picks the expression or repression of a religious point of view. To take one highly characteristic passage: after stating that ‘the dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes’ he continues, History teems with instances of truth put down by persecution. If not suppressed forever, it may be thrown back for centuries. To speak only of religious opinions: the Reformation broke out at least twenty times before Luther, and was put down. Arnold of Brescia was put down. Fra Dolcino was put down. Savonarola was put down. The Albigeois were put down. The Vaudois were put down. The Lollards were put down. Even after the era of Luther, wherever persecution was persisted in, it was successful. In Spain, Italy, Flanders, the Austrian empire, Protestantism was rooted out; and, most likely,

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would have been so in England had Queen Mary lived or Queen Elizabeth died. (Ibid.: 2, §17) It is true that, in this particular instance, Mill’s remarks are prefaced with the explicit qualification, ‘To speak only of religious opinions’, but this can come across as disingenuous. The point is that there are hardly any instances of Mill using anything other than ‘religious opinions’ with which to illustrate his argument. To give a few more examples: quite early on, Mill announces that he will illustrate ‘the mischief of denying a hearing to opinions because we, in our own judgement, have condemned them’ with reference to ‘the belief in a God and in a future state, or any of the commonly received doctrines of morality’ (ibid.: 2, §11); we are then offered a short history of the suppression of opinion which focuses primarily on religious opinion, proceeding as it does from the death of Socrates, to Christ’s crucifixion, to Marcus Aurelius’s persecution of Christianity, and culminating in the account of the Reformation quoted above (ibid.: 2, §12 ff). (The pre-Christian Socrates is the only exception to the general rule here.) When Mill wants an example of how ‘the rags and remnants of persecution’ remain, he chooses the requirement to ‘take the oath’, that is, ‘the legal doctrine that no person can be allowed to give evidence in a court of justice who does not profess belief in a God…and in a future state’: 2, §18). When he wants to illustrate how ‘doctrines intrinsically fitted to make the deepest impression upon the mind may remain in it as dead beliefs’ he chooses Victorian Christianity with which to make his point (ibid.: 2, §28). He tends to speak of ‘heresy’ when describing the intellectually adventurous, even the intellectually adventurous of his own time, as when he writes, ‘With us, heretical opinions do not perceptibly gain, or even lose ground in each decade or generation’ (ibid.: 2, §19), and ‘Those in whose eyes…reticence on the part of heretics is no evil should consider…’, etc. ‘Heresy’ is a word whose natural semantic home is religious. A final example: it is the Muslim aversion to pork which is said to be ‘of that peculiar character, resembling an instinctive antipathy’ (ibid.: 4, §14). I could extend the list. The context is secular, but the rhetoric is dominated by religious categories and vocabulary. In a way, this isn’t so surprising, given Mill’s personality. He was one of those self-consciously atheistic people for whom atheism was, itself, equivalent to an intensely felt religion. (For evidence, see the passage in his Autobiography where

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he describes how, as a boy, he felt constrained to keep his atheism to himself. According to Mill, revealing it—as he very occasionally did—only resulted in a sense of alienation from, if not outright rejection by, his peers.) (Mill 1989:52–3.) But if the need to stand up for atheism within a context of religious conformity was a strong influence throughout Mill’s life it remains the case, even so, that the secular intellectual environment within which he moved contained much more room for manoeuvre. For Milton, it would have been a matter of course to adopt a religiously conditioned perspective, just as it would have been for anyone writing in the mid-seventeenth century. But Mill had more leeway, and if you want to appreciate just how much more you need only consider that he didn’t have to choose the Socrates/Jesus/Marcus Aurelius/ Reformation story with which to illustrate the history of the repression of thought. He could just have easily chosen, say, the history of astronomy from Ptolemy to Newton. This also contains examples of unorthodox cosmological theses, considered to be so threatening by authority that their proponents had to be persecuted. Admittedly, the authorities in question tended to be religious, but, because the cosmologies were not, strictly speaking, theological theses they were not heresies. To take one example, although Galileo’s work challenged orthodoxy to such an extent that it got him into trouble, his heliocentric thesis was no more a ‘heresy’ than his claim to have observed that Jupiter has moons. (Likewise, the Theory of Evolution—which is so frequently the butt of similar treatment these days—is not a heresy. It may have implications for religion, but it is, in itself, neither a religious nor an anti-religious thesis.) If Mill had followed this latter course, religious terminology would have fallen far less readily to his hand. Mill’s choice of rhetoric is more than idiosyncratic. It betrays his argument’s religious pedigree, and serious tensions result. For example, take the noticeable tension between the activity Mill wants to defend— ‘thought and discussion’ —and the way he tends to construe the function of reason. Mill thinks that the former should be a never-ending process but, as we have seen, he also thinks that the pursuit of truth has a stopping point, a ‘gradual narrowing of the bounds of diversity of opinion’ culminating in more and more propositions reaching ‘the point of being uncontested’ (Mill 1859:2, §32). Mill obscures the tension by changing the activity’s purpose once the point has been reached. A ‘contrivance’ resembling ‘the Socratic dialectics’ will have to be introduced—a sort of mental

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gymnastics. Without this, the way Mill construes it, thought and discussion would have no further point. I suggest that this tension reflects a deeper tension between two different models, or paradigms, of reason’s function. Thus, it is quite true that, in the context of religious argument, there can be no stopping point—at least not in this world—because there is no such thing as an experiment or logical demonstration which is so uncontroversially persuasive that it can render the truth of some religious or moral standpoint ‘uncontested’. (Nor, for that matter, is there good reason to anticipate ‘a gradual narrowing of the bounds of diversity of opinion’.) So, if Mill had been solely concerned to defend the freedom to express religious opinion he would have had no problem. However, the account of knowledge he overtly sets out to defend is structured upon a scientific—or, at least, a rationalistic —paradigm, and in scientific (rationalistic) contexts there can be such stopping points.4 To say the least, Mill’s argument has such a strong theological pedigree that his secular ambitions sit uneasily within its framework. Or take a further tension, that between the anti-authoritarian posture Mill adopts and his repeated insistence that religious intolerance on the part of authority is no longer a live issue. Not only does the second chapter open with the affirmation that ‘the time… is gone by when any defence would be necessary of the press’ (ibid.: 2, §1; my emphasis), but we are told elsewhere that, for example, the present age is ‘destitute of faith, but terrified at scepticism’ (ibid.: 2, §10). Likewise, in the Autobiography, immediately after describing the way his boyhood atheism shocked and distanced his boyhood peers (in the passage just mentioned), Mill quite confidently asserts that The great advance in liberty of discussion, which is one of the most important differences between the present time and that of my childhood, has greatly altered the moralities of this question’ (Mill 1989:53). But, if authority is no longer a threat, why go on fighting authority? Reading Mill, one frequently gets the weird impression that he is fighting a battle which he knows very well to be over. Worse, it becomes increasingly obvious that the battle he really wants to fight is not that battle at all, but a different battle, one for which he is ill-equipped. In this respect, Mill is like a knight with a rusty lance who has gone into battle wearing the wrong spectacles. The real enemy—or what Mill claims to be the real enemy—goes unscathed, while Mill wastes his time tilting at a derelict windmill.

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7.3 PATTERNS OF REPRESSION 7.3.1 The tyranny of the majority So who or what, according to Mill, is the real enemy? What I have in mind is his repeated insistence that repressive authority—some more up-to-date equivalent of Milton’s ‘licenser’—is no longer the real enemy; at least, that it is not the main enemy. Mill makes the point with his very opening sentence in which he asserts that the time has gone by ‘when any defence would be necessary of the “liberty of the press” as one of the securities against corrupt or tyrannical government’ (Mill 1859:2, §1). If Mill is right, the great danger presently to be faced is not ‘corrupt or tyrannical government’ but, on the contrary, something he labels ‘the tyranny of the majority’, a phenomenon described in such paragraphs as the following. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves on the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism. (Ibid.: 1, §5) But what is ‘the tyranny of the majority’? It is difficult to say

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with certainty because, for all its rhetoric, the passage is short on precision. The answer would be relatively unproblematic if Mill was only thinking of tyranny exercised through the medium of a recognisable political mechanism—via the authority of a government-appointed censor, for example. There is no doubt that a majority, imposing its will through a democratically elected government, can act just as tyrannically towards a minority as can any other form of government. Indeed, that is partly Mill’s point. ‘Let us suppose’, he writes, ‘that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice’, but stresses that—even in such a case—‘I deny the right of the people to exercise such coercion, either by themselves or by their government’ (ibid.: 2, §1). If that were all Mill had in mind, it would be easy to agree with him. But, then, it is hardly news that democracies can act badly—Plato said as much5 —and the fact would hardly justify Mill writing, as he does, of the tyranny of the majority as if it were a new and sinister phenomenon. In any case, Mill does have more in mind. The novelty is supposed to lie, not so much in who exercises the tyranny—that it is now ‘the majority’—but in the manner of the tyranny’s exercise. The passage just quoted makes this clear. The ‘tyranny of the majority’ is, we are told, ‘a social tyranny more formidable than many kinds of political oppression’; it penetrates ‘deeply into the details of life…enslaving the soul itself’; it is a ‘tyranny of the prevailing opinion and feeling’; it is ‘the tendency of society to impose, by means other than civil penalties, its own ideas and practices as rules of conduct…’; and so on (ibid.: 1, §5; my emphasis). It seems that force and the threat of force— ‘coercion by the usual channels’ — are not this new tyranny’s characteristic mode of operation. Or so we are asked to believe, but can we really attach any clear and specific sense to Mill’s idea that there is a new tyranny imposed ‘by other means than civil penalties’? The way Mill puts it certainly leaves a great deal to be desired. One trouble is that—as with taking things on trust—we are given little convincing explanation of what is supposed to be wrong with conformity. Mill’s contemporaries may well have been uninspiring and conventional (at least, if we are to believe him, they were). They may well, many of them, have conformed quite unthinkingly to the prevalent social norms. But it is no sin to be uninspiring, conventional, and conformist; and, if there is any superiority in the unconventional, questioning,

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inquisitive, individuality Mill preferred, the superiority is not obviously a moral superiority. Here, as elsewhere, Mill appears to lay himself open to the charge of special pleading on behalf of an intellectual élite. Moreover, even where the conformity is imposed by social pressure, it doesn’t follow that things are morally amiss. Doing ‘the done thing’ because it is the expected thing—waiting one’s turn in the queue, not outstaying one’s welcome, respecting the ‘Thank You for Not Smoking’ sign—usually adds up to plain good manners; nothing more than that. As for tyranny, it is not the case that where social pressure results in unwilling conformity you automatically have tyranny. (You are invited to someone’s house. You know that all present are non-smokers, that they would find the smell unpleasant, etc., so you don’t light up your cigarette. It would be stretching things more than a little to say that you succumb to ‘the tyranny of the prevailing opinion and feeling’ here. ‘Tyranny’ is worse.) It is, of course, also true that social pressure can sometimes result in tyranny. The majority can ostracise you or, as noted, it can vote for a government which tyrannises the minority; but these methods of coercion are easily recognisable as such. They have a long pedigree, and it seems unnecessary to invent some new concept —such as ‘the tyranny of the majority’ —to accommodate them.

7.3.2 Patterns of repression So, does it follow that Mill’s ‘tyranny of the majority’ idea should be rejected? I don’t think so. The trouble with it is not so much that it is empty or that it is incoherent, as that it is underspecified. Mill is exposed to the suspicions just outlined because he doesn’t say enough about how the new-style tyranny is supposed to work. He has, nevertheless, sketched a genuine phenomenon in broad outline. Mill is right to suggest that one individual or group can dominate another using means other than explicit physical coercion. Where there are relationships of power and submission, they can take a variety of forms. There are, so to speak, patterns of repression— ‘varieties of tyranny’, if you like—and Mill’s conception does something at least to capture the fact. The point is especially relevant to the classic defence of free speech, and for the following reason. Where certain power relationships hold—that is, where something resembling Mill’s ‘tyranny of the majority’ prevails—it cannot also be true that society resembles an idealised seminar group, as required by the classic

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defence. For example, take (what I call) ‘The Speakers’ Corner Effect’. Anyone can go to Speakers’ Corner in London’s Hyde Park, stand on a box, and say anything they like. It’s a tradition. However, if you try it, you will find that the fact that you are standing in that place, and on that box, is a signal to all and sundry that nothing you say is to be taken at all seriously. As in the greater part of society at large, even where much is said, not all of it is listened to. This is a distortion of the ‘seminar group’ ideal which requires, not only that each opinion should get an equal chance of being expressed, but also that each opinion should get an equal hearing; that is, that it should be treated with equal seriousness and respect by the members of the group. The ‘Speakers’ Corner Effect’ is—I think—quite a good analogy for what can happen when a sizeable proportion of the media is owned by one organisation, or by one person. There need be no actual suppression or censorship, but the debate can become loaded in a certain way, thanks to the power relationships which come to prevail. Some ideas and attitudes get a great deal more of an airing than do others. Some become systematically stereotyped (with phrases like ‘loony left’, ‘politically correct’, and so on) and ignored as a consequence. There is no guarantee, nor even a probability, that any debate will culminate in some preferred end, such as the discovery of truth, and every likelihood that its outcome will only be determined by the power relationships. The ‘Speakers’ Corner Effect’ has many close relatives. Take the ‘Airport Lounge Effect’, so named (by me) in honour of everyone who has ever tried, without success, to buy a copy of The New York Review of Books or the New Statesman at an airport lounge bookshop. Why should such publications be so hard to obtain at airports? (The former may be a little highbrow for many tastes, though it certainly isn’t The Proceedings of the Aristotelian Society. The New Statesman may be Leftishly inclined, but neither is exactly obscure, and you can obtain both quite easily from larger London newsagents.) It’s safe to assume that the reason has little, if anything, to do with censorship, and everything to do with the play of market forces. It is simply that the management will have calculated that the likely demand for them will be so low that it doesn’t warrant purchasing a supply. Imagine the Airport Lounge Effect holding sway over a much wider area than the airport and you get something resembling the US television network—or satellite TV everywhere—where the free play of market forces has narrowed the consumer’s range of choice to a large number of variations on a small number of themes, mainly

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meretricious. There is hardly any resemblance between this, the situation which actually prevails, and the classic defence’s ‘seminar group’ idea. Mill’s phrase, ‘the tyranny of the prevailing opinion and feeling’, may capture it inaccurately, but it is not inappropriate. Such phenomena as ‘the Speakers’ Corner Effect’ and ‘the Airport Lounge Effect’ can—of course—be observed at work even when there is no legal censorship or suppression of opinion. (No state censor comes along to the airport and bans The New York Review for being subversive.)6 This means that we have an explanation of how the classic defence comes to miss its target. The point is that there are many ways in which things can work to undermine the ideals on which that defence is founded, notably the pursuit and discovery of truth, scepticism, and intellectual inquisitiveness. Mill fails to plot them and relies, instead, on an argument directed at only one threat to those ideals, the suppression of thought and discussion by authority. It is no wonder that it proves inadequate.

7.3.3 Repressive tolerance Not that I’m the first to have noticed. In a similar vein, Herbert Marcuse has argued that modern society is structured in such a way that the celebration of Mill’s ideal has come to be deployed as just another instrument of repression—hence the title of his essay, ‘Repressive Tolerance’ (Marcuse 1969). Marcuse writes: Universal toleration becomes questionable when its rationale no longer prevails, when tolerance is administered to manipulated and indoctrinated individuals who parrot, as their own, the opinion of their masters, for whom heteronomy has become autonomy. (Ibid.: 104) And, in a characteristic passage: [But] in a democracy with a totalitarian organisation, objectivity may fulfill a very different function, namely to foster a mental attitude which tends to obliterate the difference between true and false, information and indoctrination, right and wrong. In fact, the decision between opposed opinions has been made before the presentation and discussion get under way—made, not

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by a conspiracy or a sponsor or a publisher, not by any dictatorship, but rather by the ‘normal course of events’, which is the course of administered events, and by the mentality shaped in this course. (Ibid.: 111) One can see Marcuse’s point. There is urgent need to take stock of the phenomenon he tries to identify. This makes it all the more the pity that the solution to the problem (as he describes it) should be so inadequate. Marcuse thinks it enough to place confidence in ‘Liberating tolerance’, which is his name for ‘intolerance against movements from the Right and toleration of movements from the Left’ (ibid.: 122–3). Marcuse explains it this way: Withdrawal of tolerance from regressive movements before they can become active; intolerance even toward thought, opinion, and word, and finally, intolerance in the opposite direction, that is, toward the self-styled conservatives, to the political Right—these antidemocratic notions respond to the actual development of the democratic society which has destroyed the basis for universal tolerance. The conditions under which tolerance can again become a liberating and humanising force have still to be created. When tolerance mainly serves the protection and preservation of a repressive society, when it serves to neutralise opposition and to render men immune against other and better forms of life, then tolerance has been perverted. And when this perversion starts in the mind of the individual, in his consciousness, his needs, when heteronomous interests occupy him before he can experience his servitude, then the efforts to counter his dehumanisation must begin at the place of entrance, there where the false consciousness takes form (or rather: is systematically formed)—it must begin with stopping the words and images which feed on this consciousness. To be sure, this is censorship, even precensorship, but openly directed against the more or less hidden censorship that permeates the free media. (Ibid: 124–5)

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To be fair, Marcuse really has proposed a genuine solution to the problem, albeit a crude and fairly obvious solution. Under the conditions of ‘totalitarian democracy’ as Marcuse conceives them, the level playing field required by the classic defence has become pitted and furrowed. It is no longer the case that all shades of opinion get equal treatment because power relations are such that certain attitudes and ideas can no longer exert their due influence within the arena of debate. Now, one way to re-establish equality of power is—clearly—to take some power away from the relatively more powerful, so Marcuse has a point to the extent that his call for tolerance to be ‘withdrawn’ from ‘regressive movements’ and the Right amounts to a demand for just that. (It seems to me that, here, we have yet another illustration of the all-pervasive influence of Mill’s world view. Even for Marcuse, all that is required is a modification to it.) Against this it has to be said that Marcuse’s argument panders woefully to the trendy sub-Maoism which became so fashionable in the late 1960s, when Repressive Tolerance was published. One only has to consider who, in Marcuse’s scenario, will be charged with deciding what movements are ‘regressive’ and should be censored. Who else could it be but Milton’s officious, ‘ignorant, imperious, and remisse’ licenser, only this time in the modern dress uniform of a neo-Stalinist petty official? It is hard to see how ‘Liberating tolerance’ can be much more than a euphemism for what Marcuse has in mind, a piece of Orwellian doublespeak, like ‘War is Peace’ or ‘Truth is Lies’.

7.4 CONCLUSION: THE LIE OF THE LAND Right at the start of this book I remarked that, when it comes to free speech, most of us are content to rely on a map which was last redrawn about one hundred and fifty years ago. It now transpires that this assessment was a little over-optimistic, for the map of 1859 is not a complete redraft. It is the 1644 edition with minor alterations and a few marginal notes added. Another reason for finding Marcuse’s argument so disappointing is that it simply continues this process of annotation. Or—just to change the metaphor—all Marcuse has really done is tinker with the machine a little to try to get it to work under changed conditions. But if the mechanism was already showing signs of strain in 1859—if the map was already leading us to follow blind alleys— isn’t this all the more likely now? A survey of cases which arose in

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the period during which I wrote this book—and which, one way or another, raise ‘free speech issues’—reveals the degree of their deviance from the classic scenarios presupposed by Milton and Mill (I kept a rough tally). Consider: (i) Publication Milton envisages a situation in which the censor prevents the publication of written material (a book or a pamphlet). However, the written word features in only some recent cases. In other cases, problems are raised by the use of new and different technologies, not just radio and TV but, with increasing prominence, the internet. For example, it is now possible to access racist and fascist material (disseminated by organisations with names like ‘White Aryan Resistance’) via a number of Net sites. Like the ‘Stormfront’ site, most of these are American though, of course, one can reach them from anywhere for the cost of a local telephone call. Concerns have also been expressed over pornography on the Net and, more specifically, its use by paedophile rings to establish contact and to spread child pornography. Bill Gates of the Microsoft Corporation has expressed his worry that the Net is a potential threat to privacy, although he blandly expresses his confidence that ‘unrushed debate leading to intelligent public policies’ will solve things. There are many debates to be held here. On the one hand, it is arguable that putting racist material out on the internet is less dangerous than spreading it in the traditional way, by handing out pamphlets in the street and so on. (In the former case, you actually have to go looking for it.) On the other, there is no doubt that the future cannot be foreseen in its entirety, and that the effects of new information technology are potentially deep and wide-ranging. However, I won’t bore you with the ‘global village’ story, in which— I am sure—there is just about as much, and as little, truth as there was in its nineteenth-century ancestor, the ‘progress’ story. My point is just that it would be complacent in the extreme to assume in advance that considerations which apply to the publication of written material, and only those considerations, apply equally for all media.7 (ii) The state In Milton’s scenario, the material deemed offensive is suppressed by an agent of the state. In more recent times, where a large and powerful organisation has placed its weight on this or that individual, the organisation in question has quite often not been the state. For example, in what came to be known as the ‘McLibel case’ big business wielded the heavy hand. Two unemployed anarchists,

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Dave Morris and Helen Steel, were sued for libel by the McDonald’s Corporation for having published a ‘fact sheet’ called ‘What’s Wrong With McDonald’s?’ (Ironically, the ‘fact sheet’— which covers the nutritional value of McDonald’s food, its employment practices, and much else besides—is now accessible, also together with much else, on the internet at the ‘McSpotlight’ site.) The writs were first issued in 1990 and the verdict was announced just about the time I was putting the finishing touches to this book, in 1997. In another libel case, The Sunday Times, owned by Rupert Murdoch, stupidly attempted to smear Michael Foot, ex-British Prime Minister and one time leader of the Labour Party, by falsely claiming that he had once spied for the KGB. Foot won. (Is smearing a person equivalent to suppressing what he says? Where the ‘Speakers’ Corner Effect’ operates—as here— it is.) In other cases—where the state is involved—it can easily happen that a state attempts to suppress the activities of an individual supposedly living under the protection of a completely different state, so there is deviation from Milton’s paradigm here too. Such an attempt failed when, at the behest of Saudi Arabia, the British government attempted to deport Mohammed Al Mas’ari, dissident leader of the Islamic Committee for the Defence of Legitimate Rights. (Mas’ari had been disseminating propaganda hostile to the Saudi government, at long distance, from London, with the help of a fax machine.) The British courts upheld Mas’ari’s right to be granted asylum in the UK. However, in another more notorious case, a similar threat by an outside government has largely succeeded. I mean that, as I write, Salman Rushdie continues to live as a prisoner in his own country. 8 (iii) Truth For Milton, as for Mill, freedom of expression is our surest method for keeping the route to truth open. However, in recent cases, truth is a side-issue, where it is an issue at all. For example, one repeatedly encounters instances of concern over the expression of racist and fascist attitudes. I have already mentioned the dissemination of material embodying such attitudes on the internet. To take another example, in March 1996 students at Edinburgh University protested against the appointment to the Faculty of Islamic and Middle Eastern Studies of a lecturer said to be involved with the ‘Murabitoun’, ‘an anti-semitic Islamic sect sympathetic to Adolf Hitler’. In these cases, the issue is not so much truth as the effect of such attitudes on others, particularly those at whom they

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are directed: what is often referred to—understatedly and inaccurately—as their ‘offensiveness’. (Incidentally, the UK media seem quite unsure what to make of Islamic fundamentalism. Are the fundamentalists the unfortunate targets of racism, or are they its perpetrators? And what are we to make of the attempt by Michael Howard, when he was British Foreign Secretary, to block European anti-racist legislation on the ground that he was trying to protect Salman Rushdie?) The following month, students, also at Edinburgh University, campaigned for the sacking of Christopher Brand, a psychology lecturer who describes himself as ‘a scientific racist’ and whose book, The G Factor, argues that blacks are less intelligent than whites. (Brand’s publishers subsequently disassociated themselves from the book.) Finally, the 1996–7 general election campaign took place during the period in which I have been writing, and it was no surprise to anyone that there was much wrangling over the fairness of the way in which it was reported. For example, quite early on, there was controversy over a Tory Party poster which depicted Tony Blair, leader of the opposing Labour Party, with evil-looking ‘Dracula eyes’. The poster was reported to, and criticised by, the Advertising Standards Authority, although—interestingly—no similar action was taken against the Guardian for repeatedly publishing cartoons which depicted John Major, the then Tory leader, as a man who wears his underpants outside his trousers. The problem here was ‘keeping a level playing field’—fairness in political debate. It had nothing to do with the rational pursuit of truth and everything to do with manipulation at a more subliminal level through the presentation of images. (Followers of Rorty, according to whom ‘It is central to the idea of a liberal society that, in respect to words as opposed to deeds, persuasion as opposed to force, anything goes’, please note. If it is important to keep a level playing field can it really be true—also— that ‘anything goes’?) (Rorty 1989:51).9 Two points related to the foregoing will help me bring this chapter to a close. The first is that I readily admit to having assembled examples in an eclectic and unsystematic manner, by taking cuttings from the newspaper when they happen to strike my attention, and so on. I also admit to having classified them together, as cases which raise ‘free speech’ issues on a purely intuitive basis. They just happen to strike me that wa y. Nevertheless, I am pretty confident that most readers will not want to dispute my judgement on the point, although some will want to

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add to the list. The second point is that by the time this book sees the light of day the events I have listed will already be fading from memory. Some things will have changed and some cases will have been brought to a resolution. For example, out of the Cat’s Eye Kid and Mr Y-Fronts we already know who won the election (YFronts lost). It is even possible—and sincerely to be hoped—that the fatwa on Salman Rushdie will have been lifted. Such considerations illustrate the danger of over-topicality, the risk you run when attempting to establish a relationship between theoretical philosophy and current events. Still, that is a risk you have to take, because there is such a relationship and it is important to set it out. And, in any case, the point does not lie in the specific examples listed, so much as in the fact that a sample taken over any similar stretch of the late twentieth century would yield a very similar trawl (or so I am prepared to bet). After all, some of the examples simply instantiate a more general tendency. (The internet won’t go away. The academic seeking publicity for his claim to have demonstrated that intelligence varies with race is also a persistently recurring phenomenon.) In conclusion, then, note that only one of the foregoing cases— Brand’s—matches the Milton/Mill paradigm with any degree of precision. (‘Academic freedom’ appears to be at stake here. It is conceivable that Brand could portray himself as legitimately engaged in the pursuit of truth, and so deploy the classic defence in his support, although my guess is that, if it is ever published, The G Factor will turn out to have about as much to do with dispassionate scientific investigation as Holocaust denial literature has to do with historical accuracy.)10 Otherwise, the degree of deviation from Mill’s seminar group paradigm is striking.

FURTHER READING There does not appear to be a great deal of recent work on Areopagitica, or—at least—none which is especially relevant to the argument of the present chapter. (Presumably, this is because Milton is best remembered as the author of Paradise Lost.) If you want to know more about Milton’s essay, you could do worse than consult the bibliography in Patrides’s edition of Milton’s Selected Prose (Patrides 1974; see especially pp. 417–20). Amongst other items, Patrides’s list refers us to the essays by Christensen (1952), Forster

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(1951), and Kendall (1960). The most accessible exposition of Marcuse’s general political view is his One Dimensional Man (1964). There is a discussion of Mill’s fear of ‘the tyranny of the majority’ in Dennis Thomson’s John Stuart Mill and Representative Government (1976; see especially pp. 69–74).

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POSTSCRIPT TO PART ONE Taking stock of the classic defence

As the discussion is about to change direction, we have reached a good point at which to look back over the course it has taken so far and to take stock. The only way to reach a sensible verdict on the classic defence of free speech is to draw up a balance sheet. It is impossible to swallow the argument whole, but nor can it be dismissed out of hand. For this reason, I will begin with a brief summary of its major strengths and weaknesses. After that, I shall make a few observations of a more general nature. Their purpose will be to place the conclusions we are now in a position to draw in context and to set the stage for the argument of Part Two. But first the balance sheet. The classic defence’s main strengths and weaknesses tend to flow from its most salient structural features: its prioritisation of the seminar group model, its consequentialism, and its ‘rationalism’. Let us take each in turn. (i) The seminar group model At the heart of the classic defence there lies the idealisation of a certain situation, the seminar group model, as I have called it. Rational individuals are pictured deploying ‘thought and discussion’ in their pursuit of truth. It is assumed that whatever can be said in defence of this type of activity applies equally well to any activity categorisable as ‘free speech’. This represents a weakness because, in reality, many situations which quite clearly give rise to free speech issues do not much resemble the model. Examples I have discussed are the expression of fascist ‘opinion’ at provocative public demonstrations or through ‘Holocaust denial’ literature. Even where the main point is an opinion’s potential contribution to a rational debate, that contribution is not always through the deliberate suppression of

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thought and discussion, but by other means. (Witness, for example, the ‘Speakers’ Corner’ and ‘Airport Lounge’ effects.)1 So, there is no close match between the model and all relevant aspects of reality and the assumption is unjustified. However, it is important not to forget that, along with such weaknesses, there goes a corresponding strength, for a world modelled on the seminar group—a world in which there is ever-increasing communication between individuals and ever more constructive use of debate—is an ideal which is, in many ways, inspiring. Further, with the ‘communications revolution’ we are living through, nor should we think of it as impossible. There are at least some reasons for being less rather than more sceptical of Mill’s hopes for humanity. (ii) Consequentialism The classic defence rests its case on the assumption that, where thought and discussion take place, a likely consequence is the discovery of truth. To the extent that this assumption is often false, the defence is weakened by it. But this weakness is counter-balanced by a corresponding strength, because it is also the case that the assumption is often true. Moreover, one shouldn’t jump to the conclusion that the classic defence must be fatally weakened by its consequentialism, simply because many more wide-ranging and ambitious ethical doctrines, such as utilitarianism, are so weakened. It is sometimes set within the context of such a doctrine—it certainly is by Mill—but it is nevertheless possible to prise it apart from this type of context and consider it separately. (In fact, you are no more committed to wide-ranging consequentialism by the classic defence than you are by the acknowledgement that desirable consequences undoubtedly flow from giving up smoking.) (iii) ‘Rationalism’ The classic defence is ‘rationalistic’ in the sense that it makes the following assumptions; (i) that thought and discussion is the appropriate route to follow when seeking truth; (ii) that reaching truth is a question of reaching that description of the universe which most accurately reflects the universe ‘as it is’; (iii) that there is only one such description, and that truth is therefore ‘absolute’, not ‘relative’. All this is open to question. It may not apply, even within the confines of scientific enquiry. Outside those confines, it applies even less obviously. If the assumptions are false, the classic defence is clearly affected, but it is important to determine just how seriously. At the very least we shall have to abandon Mill’s faith that ‘the number of doctrines

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which are no longer disputed or doubted will be constantly on the increase’ (Mill 1859:2, §32). But what else? Moderate relativism only challenges the first and the second assumptions. Assessing the degree to which this type of relativism affects the classic defence— whether it be value relativism or epistemic relativism—must involve making a realistic assessment of what relativism amounts to. You are more likely to consider the threat serious if you think there is a clear and sharp line dividing the absolute from the thoroughly relative. But it could be that this is a misconception. There is a more extreme form of relativism— exemplified in the case of Rorty’s ‘ironism’—which challenges all three assumptions, and it is true that this seriously threatens to undermine Mill’s case. However, there are good reasons for treating this extreme version with caution. Before I move on, let me add one final item to the balance sheet. There is a feature of the classic defence on which I have not, as yet, placed much stress. One of its great strengths is that, by prioritising truth, it focuses on functions which can only be carried out through the medium of language. This is because truth can only be expressed in propositions and propositions can only be expressed in language.2 Of course, it is not an absolutely necessary requirement that an argument for free speech should stress the essentially linguistic rather than tasks which can sometimes be performed equally well by non-linguistic means. However, it is certainly a point in its favour. We are, after all, dealing with freedom of speech here. Now for some more general, contextualising, remarks. The first is that there would obviously have been far less point in the detailed examination of Mill’s argument I have been conducting if it were not possible to generalise from that argument to many others. I am not thinking only of arguments which were clearly formulated under Mill’s influence, although the conclusions I have drawn must apply to those. An example is the argument of J.B.Bury’s, A History of Freedom of Thought (Bury 1951) [1913], a book I discussed in chapter one. In Bury’s case, the debt to Mill is acknowledged and, as I pointed out in that chapter, the case he makes represents one strand of a certain, conventional, received consensus. But then there are other arguments which parallel Mill’s in certain respects, to which it is consequently possible to generalise my conclusions, but whose authors could not possibly have been influenced by Mill. For example, take Kant’s essay, An Answer to the Question: What is Enlightenment? (1970a) [1784]. This was published a full seventy-five years before On Liberty, well before

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Mill was even conceived. Of course, I am not claiming that the two essays are parallel in all respects. For example, it would be ridiculous to credit Kant with having been a utilitarian and it is not quite right, either, to describe him as having ‘defended free speech’.3 Even so, it is noticeable that, rather as Mill defends the liberty of thought and discussion, so Kant argues for the freedom ‘to make public use of one’s reason in all matters’ (Kant 1970a: 55). Rather as Mill castigates those who are happy to rule their lives by ‘dead dogma’, so Kant describes enlightenment as ‘man’s emergence from his selfincurred immaturity’, adding that ‘The motto of enlightenment is therefore: Sapere aude! Have courage to use your own understanding’ (ibid.). It is noticeable, too, that both writers connect intellectual freedom with the pursuit of knowledge and, through this, with human progress, as when Kant writes, One age cannot enter into an alliance on oath to put the next age in a position where it would be impossible for it to extend and correct its knowledge, particularly on such important matters, or to make any progress whatsoever in enlightenment. This would be a crime against human nature, whose original destiny lies in such progress. (Ibid.: 57) I shan’t waste much space speculating on what might be the explanation for these similarities between the two writers, writers who are, for the most part, divergent in their approach (although the correspondence certainly serves to confirm my description of Mill as having formulated ‘the classic version of the classic defence’). I will simply remark that, were I writing from a more Eurocentric, less Anglophonic, philosophical perspective, I would probably explain it by describing both—each hostile to prejudice and superstition and each friendly towards the secular virtues of rationality and intellectual independence—as having carried out (what is sometimes called) ‘the Enlightenment project’. (That other great Enlightenment philosopher, David Hume, connected ‘the liberty of the press’ with the English system of mixed government. The arguments of Part Two are more relevant to his case.)4 This brings me to my second general observation. It concerns the real course taken by the history of ideas, not the fantasy version. As you will recall, in chapter one I criticised the linear narrative

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according to which free speech, together with associated values such as freedom of thought, flowered under the Greeks, suffered terrible defeats at the hands of superstition and irrationalism throughout the medieval period, but eventually won through after three or four centuries of struggle. Bury presents one version of this narrative and, as I have pointed out, it is fostered by the ‘let’s get the great thinkers out of the cupboard’ approach to the history of ideas. Against this, I suggested that ‘we should at least entertain the possibility that there is no linking thread; that the various ethical and political arguments which have been advanced at various times in history and which, for one reason or another, can be categorised without strain as prioritising free speech, are only loosely related’. 5 I have been insisting throughout that I am writing philosophy here, not history. Even so, it is worth setting the record straight, and the correct account—or so I suggest—is not the linear account but that given by John Rawls. It is worth quoting him at length. The Reformation had enormous consequences. When an authoritative, salvationist, and expansionist religion like medieval Christianity divides, this inevitably means the appearance within the same society of a rival authoritative and salvationist religion, different in some ways from the original religion from which it split off, but having for the same period of time many of the same features…. During the wars of religion people were not in doubt about the nature of the highest good, or the basis of moral obligation in divine law. These things they thought they knew with the certainty of faith, as here their moral theology gave them complete guidance. The problem was rather: How is society even possible between those of different faiths? What can conceivably be the basis of religious toleration? For many there was none, for it meant the acquiescence in heresy about first things and the calamity of religious disunity. Even the earlier proponents of toleration saw the division of Christendom as a disaster, though a disaster that had to be accepted in view of the alternative of unending religious civil war. Thus, the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious

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toleration in the sixteenth and seventeenth centuries. Something like the modern understanding of liberty of conscience and freedom of thought began then. (Rawls 1993: xxiii–xxiv) On this account—which is the right account—we are faced with a peculiarly modern phenomenon—‘modern’ in the sense that it has sixteenth- and seventeenth-century origins. To this, I will only add that Rawls’s version of events is borne out by the relationship between Milton’s argument and Mill’s as I outlined it in chapter seven. This showed how a more recent argument for free speech can bear traces of an earlier argument for religious toleration and— moreover—how the later argument’s peculiarities and blind-spots can be accounted for in terms of its pedigree. Still, that is a theme to which I shall be returning. It is now time to move on. In Part Two, we turn from the classic defence to consider a completely different argument for free speech—or, more accurately, to a family of arguments. This also has a long history and a huge influence but, whereas the classic defence idealises the seminar, this argument is structured upon the framework of a different model or paradigm, the idealised constitutional convention.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. First Amendment of the Constitution of the United States of America There is a good reason for opening Part Two with the first amendment, even though the US constitution is not the only one to contain a clause defending a right to free speech, and even though there are other states, such as the UK, which do not have constitutions but which nevertheless attempt to recognise the importance of free speech in their legislation.1 The reason stems from the constitution’s having been drawn up, at the time of the nation’s birth, by a group of ‘founding fathers’ at a constitutional convention. (This was the Philadelphia Convention which first met in May 1787 and continued throughout the summer until the September of that year. The constitution itself was signed on 17 September 1787.) Consider the significance of this. It means that a group of real individuals carried through a procedure for the selection of normative principles which in some ways resembled that adopted by hypothetical individuals in social contract theory. In traditional (or ‘classical’) versions of the theory, those individuals are portrayed as moving from an apolitical ‘state of nature’, via agreement to a ‘social contract’, to a ‘civil society’ with laws and a sovereign to enforce them, but I am thinking more especially of the more recent ‘contractualist’ argument elaborated by John Rawls in his book A Theory of Justice (Rawls 1972). In that work, Rawls replaced the traditional narrative with an account of how hypothetical rational choosers select principles

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from an ‘original position’, the features of which are intended to reflect the main contours of the concept Rawls’s theory is designed to explicate, the concept of justice. (As Rawls conceives it, the problem is to determine the principles which the ‘basic structure’ of any society must satisfy if we are to term that society just.) Like the founding fathers, Rawls’s ‘rational choosers’ select, amongst others, a principle to protect free speech. The parallel prompts the following reflection. If it is true that the real-life members of a real-life convention selected a free speech principle, and if it is true—also—that hypothesised participants in a hypothesised convention would also select such a principle, perhaps the former event is more than an accident. Perhaps its parallel with the latter indicates that the choice can be given a philosophical foundation and its rationality demonstrated. It is a line of thought which is—at least—worth pursuing. That apart, there is, in any case, another good reason for trying to come to terms with Rawls’s argument, which is that social contract theory has been enjoying a renaissance over recent years, a renaissance for which Rawls’s own work was largely responsible for initiating. A Theory of Justice is not only an imaginative work, it is a fertile one. It carries implications for many questions within ethics and political theory, so much so that no one writing political philosophy at present can avoid coming to terms, not just with the argument of the book itself, but with social contract theory generally. At some point, you have to confront the question of how such theory bears —if it does—on the themes with which you are most centrally concerned. This is just as true for free speech as it is for anything else. You have to ask what, if anything, can we realistically hope to learn from a contractualist argument? What is beyond its scope? It is with such questions in mind that I embark on the next stage of this discussion.

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Contract and convention

Twenty-five years is quite a long time, even in philosophy. Once a major work has appeared the picture becomes steadily muddied, thanks to the subsequent publication of objections, of answers to those objections, of interpretations, reinterpretations, revisions— to an entrenchment of misunderstandings which all too often results from all this—and so on. The fate of A Theory of Justice has served to confirm the rule with a vengeance. Twenty or so years ago, an adequate treatment of contemporary social contract theory could have concentrated entirely on the argument of that single book. But that is no longer possible, for just as there has long been a body of literature categorisable as ‘classical social contract theory’, so there is now another for which ‘new wave contractualism’ would be an appropriate term. This, together with its associated literature, includes critical commentaries on A Theory of Justice itself, as well as a number of attempts to formulate alternative contractualist theories of justice. The most prominent of the latter are Robert Nozick’s Anarchy, State, and Utopia (Nozick 1974) and Rawls’s own revision to his original theory, Political Liberalism (Rawls 1993). In addition, even a cursory glance through recent issues of the relevant philosophical journals makes it obvious that a wideranging debate on social contract theory’s strengths and weaknesses continues unabated within English-speaking philosophy. If we are to find our way, we must first determine a few reference points within this labyrinth—hence this chapter. Its purpose is to bring the discussion to bear on a single question, namely, what is the relevance of social contract theory to the philosophical issues which surround free speech? However, as you will discover, it concentrates less specifically on free speech than it does on contract theory generally. Should there be readers who feel that I am straying from the point here—and it’s possible that there could be some—I

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will just ask them to recall the following. First, in chapter one I set out four criteria an argument must satisfy if it is to count as a genuine defence of free speech. Just to remind you, these were (i) that it must identify a class—or some classes—of acts and argue for their protection by embodiment in law and/or political practice; (ii) that those acts must be speech acts in the sense that their main function is to communicate a proposition, or set of propositions, to others; (iii) that it must treat the right to free speech as a public right, not as exclusive to a subgroup or élite; and (iv) that it must ground the right to free speech in the context of a wider, liberal value system. (You will also recall that I defined a ‘liberal’ value system as a system which attaches enormous, if not supreme, importance to individual liberty; which treats a specific set of freedoms from interference by authority as constitutive of the good society; and which grounds the former view in a more general conception of human freedom.)1 Where it seeks to justify free speech, a contractualist philosophy, such as Rawls’s, satisfies all four criteria. What is most relevant here is that it satisfies the fourth; that is, it seeks to account for the value of free speech by locating it as one component in a wider liberal ethical/political value system. This means that, if we are to judge its success, we must make some attempt at assessing contractualism at a general, strategic, level. So that is the first point to bear in mind. As a second, I would ask readers to recall the cartographical metaphor with which I opened this book. This is a map-drawing exercise, and, just as the consequentialist argument connecting free speech with the discovery of truth—what I have called ‘the classic defence’ —is a major feature of the contemporary intellectual landscape, so the contractualist account of liberal values is another. We must try to capture it accurately. Finally on this point, and as I remarked earlier, no one writing political philosophy at present can avoid coming to terms with contractualism. By the same token, it seems to me that any contemporary book on political philosophy—if it is to do its job properly—must include a chapter such as this one. The main conclusion to which the arguments of this chapter tend is that, from the perspective of anyone seeking to account for the value of free speech, certain versions of contractualism look promising. In the next section of this chapter (pp. 153ff.) I distinguish the unpromising form of contractualism, which I call ‘literal contractualism’ from the more promising, which I call ‘conventionalist contractualism’. I then account for the failings of

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the former. After that (pp. 160ff.) I outline conventionalist contractualism’s main features. I then give a brief assessment of my conclusion’s implications for the arguments of three contractualist philosophers, Locke, Rawls, and Nozick, and I point out that the last of these fails to convince through being too literally contractualist (pp. 163ff.). In Part One I discussed the extent to which the classic defence is threatened, if it is, by value relativism. Here (pp. 165ff.) I raise the question of whether conventionalist contractualism is threatened in the same way. (Of course, if it is, it cannot supply much of a foundation for the value of free speech.) Finally (pp. 170ff), I suggest that contractualism, properly understood, promises to yield a convincing account of free speech as a right. However, as I point out, if we are to appreciate this we must first shed a few preconceptions which may have been fostered by some recent philosophy. As for the rest of Part Two; in the next chapter, chapter nine, I bring contractualism more directly to bear on the question of free speech and consider whether it fulfils its earlier promise. Chapter ten is a brief discussion of Locke’s A Letter Concerning Toleration (Locke 1689) which—as I shall point out—stands in relation to modern contractualism rather as Milton’s Areopagitica (1644) stands in relation to the classic defence. In chapter eleven, I draw our discussion of free speech to a close.

8.1 CONTRACT AND CONVENTION: ‘LITERAL’ CONTRACTUALISM 8.1.1 Contract and convention The place to start is with the distinction between a contract and a convention. Roughly speaking, then, a contract exists if at least two individuals mutually agree, one with the other(s), that each will act in a specified way, and—further—if each performs the action or actions which are conventionally recognised as sealing a contract. (Hands are shaken, for example, a document is signed, or an oath is sworn.) So, if person P says to person P1, ‘I will do action a if you do action a1’, if P1; says ‘OK’, and if both then ‘shake on it’, there you have a contract (in this case a fairly informal one). You have a convention where a group of individuals meets to achieve some common purpose. One example is the political party convention,

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where members convene to discuss and—sometimes—to decide future policy. Another (more relevant in this context) is the constitutional convention. If contracts and conventions are sometimes confused then a likely explanation is that agreement is conceptually central to both. I shall call the type of theory which portrays the social contract in the former way ‘literal contractualism’. I shall call the type which portrays it in the latter way ‘conventionalist contractualism’. (These are ideal types, of course. The major contract theories extant are, in fact, hybrid variants). I shall argue that literal, as opposed to conventionalist, contractualism cannot possibly be deployed to achieve the ends which social contract theories are typically deployed to achieve. Such theories tend to have universalistic ambitions. They attempt to demonstrate that the great majority, if not all, of us are under certain moral obligations, to obey the sovereign, for example, or to respect the natural rights of others. The precise list of obligations varies from theorist to theorist, of course.)2 A social contract theory claims to achieve such ambitions by logically deriving those obligations from an account of the social contract itself. However, in the case of literal contractualism, there are at least three reasons why this enterprise is doomed to fail. I shall now go on to detail these. It follows—of course—that so far as free speech is concerned nothing follows from a literal contractualist argument. But then, even if this conclusion is rather negative, it is important to establish it.

8.1.2 Literal contractualism: the obligations of direct parties The first reason for rejecting literal contractualism relates to moral obligations which a contract creates, and which fall upon the shoulders of the direct parties, P, P1–PN; that is, those individuals who actually make the agreement and confirm it with a signature, a handshake, or whatever. Suppose, then, that P says to P1, ‘I will do action a if you do action a1’. Suppose that P1 agrees to the proposal and that a contract results. The question is, are P and P1 respectively under a moral obligation to do a and a1 respectively? I think they are, but I would add that this obligation must always be defeasible. At least, the point holds for ordinary, day-to-day, nonhypothetical contracts agreed between real three-dimensional individuals who occupy specifiable spatio-temporal locations. (Let

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us call these ‘real’ contracts, for short.) To elaborate: if there were no moral obligation to do what one has contracted to do—one which applies in the normal, unexceptional case—it would be impossible to explain the general point or purpose of the practice of making contracts. In this it resembles the practice of promising, of which it is a more formal variant.3 In the absence of the obligation, the rule ‘binding’ you to do what you have contracted to do would be a mere functionless taboo. I think the rule is more than a taboo, so I have to accept the existence of the obligation. However, it is an obligation which is, in principle, always open to defeat by counter-obligations which do not themselves result from the contract. They ‘cancel it out’, as it were. It is easy enough to see why. For example, (i) it could happen that, subsequent to the contract, events transpire such that one party or the other has a good excuse for breaking it. (P was booked to appear on stage that night, but has discovered that a close relative is seriously ill. P has promised, in front of witnesses, to love and honour P1, but has just discovered that P1 was already married to somebody else, …and so on.) Or (ii) there being no logical restriction on what a person can contract with another to do, it could be that P and P1 contract to do things which are, in themselves, patently immoral. Murder and arson do not suddenly become moral just because P1 has contracted to shoot P1’s wife if P first burns down the orphanage. Or again; (iii) although it is true enough—as the pro-free market ‘libertarian’ Right stress— that no contract will be agreed unless all parties believe they will gain from it, it is also true that each party gains only relative to the situation he or she is in just prior to the contract—and the ‘baseline’ can be extremely low. To borrow an example from Nozick, ‘Suppose that usually a slave owner beats his slave, each morning…. Today he says to his slave, “Tomorrow I will not beat you if and only if you now do A”’ (Nozick 1972: 115–16). If the slave agrees—if there is a contract, even—both will benefit. The slave owner will get A done for him and the slave will avoid a beating. But what if the slave gets a subsequent opportunity to avoid doing A and what if this takes the form of a chance to escape? Unless slaves are morally obliged to continue as slaves— which they are not—it cannot follow that the slave is morally bound to do A. It follows that, for any real contract, the moral obligations which derive from that contract are, in principle, always defeasible by further obligations which do not derive from the contract. Something else follows too, namely that, if there are obligations

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which derive from a ‘social contract’ in just the same way that obligations derive from real contracts, then the former must be equally defeasible by extra-contractual obligations. This means, in turn, that no literal contractualist story can give a full account of moral obligation. How might a defender of literal contractualism respond to this conclusion? There are at least two alternatives. One is to accept it and add that—of course—there are moral obligations which are not derivable from any contract, as well as that social contract theory never had ambitions which are in that sense so universalistic. (Who said it did?)4 If this is right, my argument threatens social contract theory, but it does not destroy it because the possibility of adopting a limited contractualism is left open. And it does seem a reasonable response. (One writer to whom it would be open is Locke, according to whom the contract’s purpose and scope are determined by the Law of Nature. On this account, the obligations imposed by the latter do not themselves result from the contract.) 5 The other alternative is to try to show that the social contract itself is sui generis; for example, by arguing that it is so much more fundamental to morality than real contracts that an all-embracing range of indefeasible obligations is, in fact, derivable from it.

8.1.3 Literal contractualism: there is no ‘deep-level’ contract So we must now ask is the social contract itself unique or sui generis? I do not believe the conclusion can be demonstrated. To see why, let us now turn to my second objection to literal contractualism. This is that only real contracts can give rise to obligations; hypothetical contracts cannot. An example will help to show why. Suppose that P and P1 are neighbours. P frequently travels abroad —to Spain, say—and while P is away P1 feeds P’s beloved cat. On his return, P has never failed to present P 1 with a bottle of Spanish brandy as a ‘thank you’ gift. Suppose that this has been going on for quite some time—a period of years. However, suppose also there was never a moment at which P and P1 specifically committed themselves to the procedure with an agreement, and there is certainly no relevant signed piece of paper. It is just that, so far as they can recollect, P and P1 have always done things that way. But now suppose that, one day, P returns without the expected litre of Fundador. P 1 is disappointed and protests, but P indignantly responds with, ‘We

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don’t have a contract, you know!’ (P’s response might have been, ‘But I’ve never promised you anything!’ But my subject is contracts—not just promises.) The question is, is P morally at fault for not having returned with a present of brandy for P1? The regularity of P’s behaviour had encouraged P 1 to hold certain expectations, and your answer will, I think, depend on whether you believe that the expectations are sufficient to place P under a moral obligation. Notice, though, that— if you do—the absence of a contract (or a promise) is irrelevant, and that, if there had been a contract, it would have been equally redundant. What would its point have been, given that the expectations are by themselves enough to create an obligation? You might want to say that, in the story, it is ‘just as if’ there is a contract between P and P1, that there is a ‘tacit contract’ —you might even want to say that there is, in this sense, a ‘hypothetical’ contract— but, note, ‘it is as if there is a contract’ logically entails ‘there is, in fact, no contract’. (In any case, why would you want to put things that way unless you were already predisposed to favour contractualism?) By contrast, if you think P is not at fault, then you must believe that a contract would have made a difference, that there is real work for a contract to do here because P1’s expectations, however well-founded they may be, are illegitimate in the sense that they do not entitle P1 to hold P morally responsible. To sum up, the story illustrates a certain relationship between expectation, obligation, and the contract. Specifically, it shows how a contract comes into play where the expectation that some person P will do action a is by itself insufficient to place P under the obligation to act as expected. One function of a contract is, thus, to create a morally binding expectation where none existed before. (And, of course, Hobbes’s point is pretty much that. Life is inevitably ‘nasty, brutish, and short’ when others can never be relied upon to act in regular and predictable ways. On this type of account, the general practice of contract making and keeping derives its point from the way contracts create expectations.) (Hobbes 1985:186).6 But now—my point—if you ask how a contract creates an obligation, the answer has to be as follows. It cannot be that there is a ‘tacit’ or an ‘as if’ contract resulting only from the fact that P behaves in ways which lead others to hold certain expectations. As noted, the ‘tacit contract situation’ is identical with the ‘no contract situation’. On the contrary, the additional expectation required to create the obligation can only result from an explicit commitment.

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P must make P 1 (and, where relevant, others) aware that P is intentionally placing himself, or herself, under the obligation to do action a as from time t. How? The only way P can make a public commitment of this type is by going through the publicly recognised forms—that is, by saying ‘I promise…’, by signing the appropriate document, and so on—and these are things only a real, nonhypothetical person can do. It follows that only real contracts count. But any postulated, sui generis, ‘deep-level’ social contract is not a real contract. Any such contract is a construct of some given theory. Therefore it also follows—as I am claiming—that there can be no ‘deep-level’ social contract from which an all-embracing range of indefeasible obligations can be derived.

8.1.4 Literal contractualism: bystanders My third reason for rejecting literal contractualism concerns the obligations placed by a contract on third parties or ‘bystanders’. Take the case of Q. Q is not directly party to the contract negotiated between P and P1 Nor is there any further contractual relationship between Q and either, or both, the latter. (For example, neither P nor P 1 is Q’s representative in court or the stock-market— Q’s barrister or stockbroker. If suchlike contractual relationships pertained, Q would not be a bystander.) But suppose, also, that the contract has consequences by which Q is affected. (For example, it could be that P has sold property to P1 —land, or a house, say—and that Q would have benefited from the possession of that property; it could be that P and P1 have decided to marry, thus depriving Q of the opportunity to marry P1, it could be that industrialists P and P1 have made an arrangement whereby wages are forced down and prices up, and that Q becomes worse off as a result; …and so on. It would be very easy to multiply examples here.) Does the contract agreed between P and P, place Q under any moral obligations? I think it does, but only one, and that is the defeasible obligation to respect contracts drawn up by others. This must exist if the general practice of making contracts is to have any point. It must also be defeasible, if only because there is no logical restriction on what P and P1 can contract to do. (If slave owners P and P1 have agreed to a deal involving the sale of slave Q, there is no obligation on Q to respect the deal.) In most respects, this obligation parallels that placed by the contract on P and P1, so I shan’t labour the argument. But note: that is as far as it goes. ‘Respecting the agreement’ is the

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only obligation Q is placed under. There can be nothing more specific. Just for example, where Q is genuinely a bystander, P and P1 cannot agree that Q will feed P1’s cat while P is away. Taken together, the foregoing arguments are catastrophic for literal social contract theory. Let me recapitulate. By the first argument, above, obligations derivable from any real contract are always, in principle, defeasible by further moral considerations, not themselves derivable from a contract. If the social contract resembles mundane, ‘real’ contracts in this respect, it follows that not all obligations can be derived from a social contract. This is the least devastating conclusion, for it leaves open the possibility of there being some obligations which are not so derivable. However, by the second argument only real contracts oblige. This means that there can be no hypothetical social contract, although—sparsity of evidence notwithstanding—the possibility of there having been a real historical event, when our prehistoric ancestors came together to agree a social contract is left open. Lastly, though, even the latter possibility is closed off by the third argument according to which contracts impose no specific obligations on bystanders. Descendants of the original contractors are not direct participants in the original agreement. For that matter, neither are we when we read philosophers’ accounts of hypothetical contracts. So, the third argument entails that no literal social contract argument can have relevance for us. All in all, one is forced to concur with Hume’s assessment of ‘the original contract’: But the contract on which government is founded is said to be the original contract, and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement by which savage men first associated and conjoined their force be here meant, this is acknowledged to be real; but being so ancient and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority. If we would say anything to the purpose, we must assert that every particular government which is lawful and which imposes any duty of allegiance on the subject was at first founded on consent and a voluntary compact. But besides that this supposes the consent of the fathers to bind the children, even to the most remote generations—which republican writers will never

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allow— besides this, I say, it is not justified by history or experience in any age or country of the world. (Hume 1953b: 47)

8.2 ‘CONVENTIONALIST’ CONTRACTUALISM However, many existing ‘contractualist’ arguments are, in reality, founded less on an account of a contract than they are on a conception of a convention. (More often than not, ‘social contract theory’ is something of a misnomer.) As a result, they can survive the foregoing objections relatively unscathed. How come? The answer relates to the dimension singled out by argument three above, namely the relevance of agreements reached to ‘bystanders’ not directly party to the agreement. As just noted, where P, P1…PN negotiate a contract, the only obligation under which bystanders Q, Q1…Q N can be placed as a result is the general ‘in most instances’ obligation to respect contracts agreed between others, and even that is defeasible. In sharp contrast, in the case of a convention, agreements reached between participants P, P1…PN can sometimes bind those not present to a whole series of quite specifically defined acts and omissions. Quite often, that is the whole point of holding the convention in the first place. For example, the Philadelphia Convention managed to determine a complex body of rules defining a fairly specific set of obligations—the constitution itself, in other words. Not only that but those obligations were intended to be, and are even now widely held to be, binding on all US citizens—even those who are living now, and who could not possibly have been present because they had not even been born by 1787. So the question is this: how is it that contracts cannot bind third parties whereas agreements reached at conventions can? Clearly, the answer must have something to do with the relationship between P–PN and Q–QN. This must be different in each type of case– contract and convention respectively—and so it is. Thus, in the case of a contract, the relationship is, so to speak, ‘merely accidental’. P–PN agree a contract and it ‘just so happens’, if it happens at all, that Q– QN are affected. In the case of a convention, if agreements reached by P–PN are to bind Q–QN, the relationship must fall into a more specific category. But what category? Well, perhaps there are various possibilities here, but representation is certainly one. So, one answer

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to the question at issue is that, for any convention, agreements reached by participants P–P N , are morally binding on nonparticipants Q–QN, where P–PN are representatives or ‘standins’ for Q–QN. (For a contrasting example, suppose that P is Q’s respected counsellor. In this case P’s advice will be morally relevant to Q’s decisions, but it won’t be morally binding. Where P is Q’s representative, P’s decisions are both.) Of course, there are various ways in which one person (real, fictional, or hypothetical) can come to stand in a representative relationship to another. In the case of the Philadelphia Convention, the relationship is a function of democratic procedures and practices generally regarded as authoritative: the participants were delegated to attend by the legislatures of their respective states, the constitution had to undergo a process of ratification, state-by-state, and so on. What of the more directly philosophical example, the relationship between Rawls’s rational choosers and ourselves? The former could never really exist. Unlike us, the choosers make decisions from behind a ‘veil of ignorance’ which is so opaque that ‘no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like’ (Rawls 1972:137). Nevertheless, they are (supposedly) so stripped of individually distinguishing characteristics that their predicament only mirrors certain fundamental features of our common human condition. (No one even knows if he is really a ‘he’.) That is how they come to represent us. They are not us and yet, on the other hand, we are exactly who they are, and that is why the principles they choose, being principles of justice for them, are (Rawls holds) morally binding on us. In conclusion, then, a hypothesised social convention—unlike a hypothesised social contract—can be used to demonstrate that we are, all of us, under certain moral obligations, where there is a significant dimension in which the participants in the convention represent ourselves.

8.3 SOME INTERIM CONCLUSIONS 8.3.1 Rawls and Locke But if many ‘contractualist’ arguments are, in fact, best treated as exercises in conventionalism, what follows? For much contractualist

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theory, the answer is nothing too surprising. Just for example, my argument only serves to reinforce the conclusion that Rawls’s argument is more conventionalist in nature than it is literally contractualist. But then, that is a point on which Rawls himself is frequently clear and explicit.7 Or take Locke. If certain passages in the Second Treatise are anything to go by, it seems that Locke believed agreement to the social contract to have been a real historical event; or—more precisely—that there have been a number of such events. In other words, there is textual evidence that he saw himself as a literal contractualist. For example, Locke disarmingly discounts the objection that ‘History gives us but a very little account’ of any such fact, on the grounds that ‘it is not at all to be wondered’, given the state of nature’s ‘inconveniences’, and he adds by way of emphasis that if we may not suppose Men ever to have been in the State of Nature, because we hear not much of them in such a State, we may as well suppose the Armies of Salmanasser, or Xerxes were never children, because we hear little of them, till they were Men, and imbodied in Armies. (Locke 1988:334) In short, it is Locke’s view that, whatever the evidence, it must have been that way. From a present-day standpoint this can seem quaint at best. At worst it appears obtuse and dogmatic. However, it doesn’t much matter for, whatever Locke himself may have construed the theoretical status of his own argument to have been, it retains force and relevance provided that we can treat it as an exercise in (‘conventionalist’) rational choice theory. This we can do if we think of Locke’s original contractors as hypothetical standins for ourselves. Like us—‘us’ according to Locke, that is—they have natural rights and so on, but they are a little better than we are at exercising rationality. That said, though, I have to confess that the point has already been eloquently put—and some time ago—by Hannah Pitkin, who points out that ‘the historical accuracy of the contract doctrine is basically irrelevant’ ‘because ‘the contract is a logical construct’. Pitkin adds,

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The only ‘consent’ that is relevant is the hypothetical consent imputed to hypothetical, timeless, abstract, rational men. (Ibid.: 57) Pitkin does not employ the ‘contract’–‘convention’ terminology I have adopted, but her point is pretty much my own.

8.3.2 Nozick So, have I been wasting my time? I don’t think so, because my arguments up to this point do result in at least one serious casualty, namely Robert Nozick’s ‘entitlement’ theory of justice (which I take to be the most sophisticated version of the type of contractualism which tends to be embraced by ‘libertarians’ of the New Right). According to Nozick, there are two—and only two—ways to become ‘entitled’ to a ‘holding’. You must either acquire a thing from a previously ‘unheld’ state in accordance with a ‘principle of justice in acquisition’ (the details of which he leaves unspecified), or else by a process of ‘voluntary’ transfer (i.e. by gift, bequest, or voluntary exchange) from someone else who was previously entitled to it. In the latter case, Nozick’s ‘principle of justice in transfer’ is satisfied. The two principles are supposedly exhaustive, so, if Nozick is right, their repeated application is the only way to derive a just distribution. As Nozick puts it, ‘A distribution is just if it arises from another just distribution by legitimate means’ (Nozick 1974:151). Two points should be clear, even from this brief summary. First, Nozick construes all rights on the metaphor or model of property rights. The terminology of ‘acquisition’, ‘entitlement’, ‘holding’, and ‘transfer’ renders this evident. Second, because property is normally, if not always, voluntarily transferred by means of contracts, Nozick’s entitlement theory amounts to the claim that the justice of a given distribution can only be established historically, by tracing back the line of exchanges—largely contracts —from which it has resulted. If this isn’t taking contracts seriously, nothing is.8 Nozick is insistent that his argument should be understood as a version of (what I have termed) literal contractualism. He writes: That from a just situation a situation could have arisen via justicepreserving means does not suffice to show its justice’ (ibid.). As this shows, his claim is that a given distribution is just if it results from a just process of acquisition and transfer which has in fact

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taken place. The claim fails by the first and the third of my arguments set out above. Both yield the conclusion that obligations which derive from a contract—whether they apply to the direct contractors (first argument) or bystanders (third argument)—are always defeasible by further moral considerations which do not themselves result from a contract. It follows that his contractualist story cannot tell the whole story about distributive justice, as he thinks it can. (On this interpretation, Nozick’s argument is also embarrassed by the fact that, even where it is possible to trace the lineage of some given property distribution, it often turns out to have originated, not with an act of ‘just acquisition’, but with violence, theft, and fraud.)9 Not that it would have helped him to take the alternative line, for any attempt to justify a real distribution with the help of a hypothetical story (about ‘just transfers’ which never took place in reality) would fall foul of all three arguments, including the second, according to which real contracts are the only sort from which an obligation can derive.10 Either way, Nozick’s argument fails through being too literally contractualist. And this is quite an important conclusion to have reached. For one thing it shows that one variant of ‘new wave’ contractualism, the libertarian variant, is a blind alley. The relevance of this to the main question at issue—the question of how much light contractualism can shed on the free speech issue—is that we now have part of the answer, i.e. that there is nothing to be learnt from the libertarian variant because that version of contractualism is fundamentally flawed. However, to this we can add that contractualism cannot yet be dismissed in its entirety, for there may still be something to learn from the conventionalist form. And there is something else too. By keeping literal and conventionalist contractualisms clear and separate we are in a better position to guard against letting the latter become invested with presuppositions which are appropriate only to the former. To take an example, literal contractualism presupposes a view of rights as rooted—like bodily organs—in the individual person. (It is a view upon which I have already cast some scepticism.) 11 However, there is no reason at all for importing the assumption into a conventionalist argument and—as I shall eventually argue—when it comes to free speech there is much to be gained from keeping it at bay.

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8.4 CONTRACTUALISM AND VALUE RELATIVISM In Part One, I discussed the extent to which the classic defence of free speech—exemplified by Mill’s argument for the liberty of thought and discussion—is undermined by value relativism. The question was, if values can vary from culture to culture, can it be objected that a liberal system of values, with its attachment to freedom of speech, is ‘arbitrary’ in the sense that it is no better founded than any other system of values? (I suggested that, although values can indeed vary, the objection can be overstated.)12 On the face of things, it looks possible to raise a parallel objection to contractualism, so we should now consider this.

8.4.1 The apparent universalism of Rawls’s ambitions So how far, if at all, is conventionalist contractualism undermined by the consideration that values and mores can vary from culture to culture and—not only that—but historically, over time? The question is more difficult than it should be, because there is textual support for an interpretation of A Theory of Justice according to which Rawls has universalistic ambitions (or, at least, that he had them when he embarked on the project). On this interpretation, he is assuming the existence of a single ‘concept of justice’, universally applicable across space and time to all situations in which people stand to gain from social cooperation, each with the others. If this is right the ‘original position’ must be designed accordingly, to mirror certain basic structural features of that concept. Support for the interpretation can be derived from, for example, Rawls’s comment that ‘it seems natural to think of the concept of justice as distinct from the various conceptions of justice’ (my emphasis) with the former ‘being specified by the role which these different sets of principles, these different conceptions, have in common’ (1972:5). Likewise, the ‘original position’ is systematically stripped of any detail from which one might glean a spatio-temporal location for it, and its inhabitants are devoid of individually distinguishing features. All this gives the impression that Rawls’s reason for seeking ‘widely accepted but weak premises’ (ibid.: 19) must be to ensure that his choosers go for nothing idiosyncratic or peculiar to themselves or

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their own group, i.e. that they select principles of genuinely universal applicability. Now, it isn’t necessary to establish the accuracy or inaccuracy of this interpretation. In fact, it is an interpretation which Rawls himself eventually repudiated, although the textual support for it is such that you can’t blame anyone for having been swayed by it. (I certainly held something like this view of Rawls for a long time. And I was in good company, for R.P.Wolff interpreted Rawls in a similar way. According to Wolff, Rawls is ‘striving for absolute universality, for a contemplation of the foundations of social philosophy sub specie aeternitatis’ (Wolff 1977:179).) However— whatever Rawls’s ambitions may initially have been—the point is that no universalistic project is viable if values, including the valuation of basic principles for the regulation of social cooperation, can vary across cultures. There are at least two reasons why. One is that if value relativism is right it entails that there can be no single concept, the concept of justice, to elucidate. Rawls is pursuing a chimera. The other is that if every valuation must stem from a given cultural perspective, it is unlikely that Rawls can give a sufficiently value-neutral account of the original position. His premises will, of necessity, come culturally laden.

8.4.2 Relativism and representation But if the recognition of the possibility of cultural variation requires the abandonment of universalistic ambitions how badly— really— is contractualism affected? Is the damage serious? An example of someone who appears to think so is Michael Sandel. It is Sandel, you will recall, who criticises liberalism, and Rawls in particular, for failing to recognise that there are specific ‘aims and attachments…loyalties and convictions whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or community or nation or people’ …and so on (Sandel 1982:179). 13 By Sandel’s account liberalism is thus saddled with a shallow ‘deontological ethic’ which means that its whole project is terminally damaged. In his concluding section, he writes: Liberalism teaches respect for the distance of self and ends, and when this distance is lost, we are submerged

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in a circumstance that ceases to be ours. But by seeking to secure this distance too completely, liberalism undermines its own insight. (Ibid.: 183) In short, it is Sandel’s view that once you have recognised that your self, together with your values (the ‘aims and attachments’ which partially define you), is a culturally and historically localised phenomenon, liberalism as a whole—including Rawls’s thesis— must be rejected wholesale. But I think that to take this type of approach is to be guilty of exaggeration. It seems to me that a conventionalist contractualism can dispense with universalistic ambitions, recognise that values can vary across cultures, and remain quite unscathed otherwise. The reason is that the concept of representation can effectively take over a lot of the work which Rawls’s ‘widely shared but weak’ premises are supposed to do. To see the point, take a group of individuals, real or imaginary. Any group will do. Let us take—say—you, me, your local traffic policeman, the character played by Arnold Schwarzenegger in the Terminator movies, St Francis of Assisi, Attila the Hun, Stan Laurel, Oliver Hardy, the entire membership of the Aristotelian Society, and the cast of Baywatch. Imagine that, tomorrow, they are going to be parachuted on to an island. There they will spend three weeks before a boat arrives to pick them up. (It is to be ‘the holiday of a lifetime’.) Today they are meeting to decide ground rules. Suppose that they manage to come up with some rules. (There is, note, some sense in the description of the principles they choose— whatever they may be—as ‘the principles of justice for that group over that period’. It may be bending usage a little, but it is not exactly a misuse of the word ‘justice’ to describe them that way.) Now ask, what is the relevance to their decision to us? Clearly, the answer is that it depends upon the extent to which these individuals in their situation can be taken to represent ourselves in ours. It could be that the situation imagined is so idiosyncratic that we can learn nothing from it. For example, a group of Trappist monks, having taken a vow of silence, will presumably not select a principle guaranteeing free speech or the liberty of expression, but their decision will contain no anti-free speech lesson for us. Likewise, there may be little for us to learn from decisions taken by robots, who don’t eat and who continue their species by assembling replicas of themselves with spanners out of spare parts. Or—again

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likewise—followers of Rawls will object (rightly) that by introducing the Schwarzenegger figure into my own story I have raised the possibility of the others being coerced into selecting any principles he forces them to. If so, we— who prefer our principles to be impartial between individuals—will not attach much significance to the outcome of the particular ‘rational choice’ situation I have just described. But a rational choice scenario need not be so idiosyncratic. The situation it depicts can be strongly representative of our own. This is all the more likely given that the absolute/relative dividing line is not ‘once and for all’ and clear cut (a point to which I drew attention some time ago).14 On the contrary, values can be ranged along a continuum in terms of the degree to which they are contingent upon cultural variables. Thus, any human society will need rules and arrangements for the organisation of production, for the regulation of relations between the sexes and the bringing up of children, for the distribution of food. The precise nature of the system may vary from culture to culture, but it will never be a ‘mere’ culturally dependent phenomenon, like a taboo or a fashion. Moreover, it is on the ‘justice’ or otherwise of these sorts of arrangements (not on fashion) that contractualist arguments tend to focus. The second point is that a rational choice scenario can be strongly representative, in the sense that there will be much for us to learn from it, without its having to embody presuppositions which are so ‘weak’ that pretty well everyone will agree to them, or without our having to go in search of—elusive and non-existent— features supposedly common to all humanity. In fact, the ‘social contract’ or ‘rational choice’ scenario can be strongly representative whilst, at the same time, acknowledging a fair amount of variation in value systems across space or time. For example, a version of the former which represented a peculiarly late-twentieth century, or post-Enlightenment, version of the human predicament, would have relevance for us, even if it had none for anyone living before, say, 1500. Such considerations are quite sufficient to draw the sting from any relativistic ‘threat’ to contractualism. So—finally on this point—note that it is not even a criticism of Rawls’s argument that, for all his aspirations to value-neutrality, its premises surreptitiously embody a peculiarly North American set of political values. I am not saying that it doesn’t, although I am aware that many philosophers are contemptuous of this type of suggestion. For example, Ronald Dworkin raises the ‘criticism’ that

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‘the particular institutions and arrangements that Rawls says men in the original position would choose are merely idealised forms of those now in force in the United States’ only to dismiss it curtly as ‘foolish’ (Dworkin 1977:182). I would be less dismissive. (As it happens—and against Dworkin—it seems to me that Rawls does rest his argument on a number of suspiciously culturally laden assumptions.) 15 My point is that, from the standpoint of conventionalist contractualism’s general approach, it doesn’t necessarily matter that a philosopher should make such presuppositions. Here, it is worth bearing in mind that Rawls is very much exercised by the challenge of cultural diversity. Consider the following passage. This time it’s post-A Theory of Justice: One task of liberalism as a political doctrine is to answer the question: how is social unity to be understood, given that there can be no public agreement on the one rational good, and a plurality of opposing and incommensurable conceptions must be taken as given? And granted that social unity is conceivable in some definite way, under what conditions is it actually possible? (Rawls 1985:249) Now compare the above with the following passage in which Isaac Kramnick, the American historian, discusses the function of the constitution: Along with the flag, the Constitution stands alone as a symbol of national unity. America has no royal family, no heritage of timeless and integrative state institutions or symbols, no national church. Add to that America’s history of being peopled by diverse religious, national, and racial stocks, many of whom came long after the founding, and one can see how the Constitution could become such a focus of national identity and loyalty. (Madison et. al 1987:12–13) So, according to Kramnick, the Constitution serves to facilitate coexistence between diverse people who are, perforce, constrained to occupy the same geographical area. In a parallel sort of way, Rawls hopes to find principles to which individuals with differing, even

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conflicting, value systems (or ‘conceptions of the good’) can agree. For the later Rawls, this has become the big problem it is the main task of his philosophy to solve. But so what if his presuppositions surreptitiously embody a ‘peculiarly American’ standpoint? The problem Rawls identifies is both real and serious, and one can only share his sense of urgency. Either we find a modus vivendi— preferably one which does not involve the exploitation, subjugation, or humiliation of one section of the species by another—or we are in deep trouble. This may not have been true in past times, when people in different parts of the world could be quite unaware of each other’s existence, but it is true now. So, whatever the cultural roots of Rawls’s presuppositions, we should take his argument seriously. As for the story of the ill-assorted group—Schwarzenegger and the rest—who are going to an island, that wasn’t really a droll philosopher’s example, designed to illustrate a point. At least, it wasn’t just that, for we are—all of us together—marooned on that island as it continues to drift—who knows where? —through the vast empty quarters of our galaxy’s outer regions.

8.5 CONCLUSION: CONTRACTUALISM AND RIGHTS The conclusion to which the arguments of this chapter appear to be tending is that contractualism is a promising avenue to explore, provided that we take care to distinguish conventionalist contractualism of the type exemplified by Rawls’s argument from post-Rawlsian accretions such as Nozick’s. If it can be shown that hypothetical individuals in a hypothetical situation would select, as part of their ‘constitution’, a principle defending free speech—and if there are significant respects in which those individuals, in their situation, can be said to represent us in ours—then we have a powerful argument for free speech. Whether this really can be shown is the question which forms the subject of the next chapter. Before I leave this one, it is worth mentioning one further reason for regarding conventionalist contractualism hopefully. I mean the way it can handle the concept of a right. As many readers will know, one of the principal motives for which neo-contractualist theories were initially formulated was to give a deep-level, philosophical account of the existence of moral rights. It was felt that consequentialist ethical positions, such as

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utilitarianism, cannot account for rights, and that they thereby violate the Kantian injunction to treat others as ‘ends in themselves’ and never as means.16 Accordingly, in the opening chapter of A Theory of Justice, Rawls states that ‘Justice denies that the loss of freedom for some is made right by a greater good shared by others…. Therefore in a just society the basic liberties are taken for granted and the rights secured by justice are not subject to political bargaining or to the calculus of social interests’ (1972:28). His aim is, thus, to give a theoretical account of how rights which are ‘not subject to bargaining or to the calculus of social interests’ are possible. Likewise, it is Nozick’s contention that a rights-based ethics such as his own is incompatible with any ‘end-state’ or ‘patterned’ view, such as utilitarianism. I shan’t discuss whether these differing variants of contractualism succeed in achieving their stated aim, or, indeed, whether they interpret utilitarianism correctly. I shall only point out that, whereas Nozick cannot account for any right to free speech there may be, it looks possible that a Rawlsian approach could. The reason for Nozick’s failure on this point has already been discussed. It is that he construes rights on the model of things people ‘have’, as they have bodily organs or—if not that—personal possessions. 17 Notice that this view entails that even Robinson Crusoe, alone on his island, has fundamental rights. Now, perhaps there are some rights which can be construed in this way. However, the right to free speech cannot, and the reason is connected with something else we have noted, namely that the exercise of free speech requires a context if it is to exist. At the very least, it requires two people, a ‘speaker’ and a ‘hearer’. Most likely, it will require something larger, an ‘audience’. It also requires that these individuals should be related in certain sorts of ways and not in others. It follows that Robinson Crusoe cannot have the right to free speech (which is not to say that he is denied the right to free speech, of course. The point is that the question of whether he has, or is denied, a right to free speech, can’t get a grip here). So, if Nozick’s position entails that Crusoe has rights, and if Crusoe can’t have a right to free speech, then either there is no such thing as a right to free speech or Nozick is wrong about rights. And that apart, there is at least one alternative way to represent the relationship between persons and their rights. This also respects the Kantian injunction, but it places the necessity for coexistence and cooperation centre-stage and represents the exercise of rights

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and duties as a function of that necessity. Cast in conventionalist contractualist terms, it portrays negotiators who participate on an equal footing and reach agreements which define rights and duties for all. (An example of someone who takes this approach is H.L. A.Hart. In his article ‘Are there any Natural Rights?’ Hart claims that ‘there is at least one natural right, the equal right of all men to be free’ (Hart 1955:175). Given that, he goes on to argue that there has to be a ‘special kind’ of ‘moral justification for limiting the freedom of another person and for determining how he should act’ (ibid.: 183). So, on Hart’s account, other rights arise where such a justification exists. Somewhat similarly, Rawls’s negotiators start from a position in which each is equally situated and—because they need to coexist—subsequently reach agreement over principles.) One advantage of this approach is that it is potentially capable of accounting for a right, such as the right to free speech, which presupposes the existence of a number of people, each of whom stands to the others in certain relationships. Drawing a clear line between conventionalist contractualism and other variants helps make this apparent. As a final comment, let me just remark that social contract theory’s traditional terminology doesn’t exactly help in this respect. As its ‘classical’ seventeenth- and eighteenth-century exponents tended to put it, discrete individual persons, each with his or her own set of individual ‘natural’ rights, contrive to establish a ‘civil society’ with a ‘sovereign’. The latter’s function is to ‘create’ law in order to protect ‘natural rights’. (So, for example, in Locke’s case, individuals, each of whom has a natural right to life, liberty, and estates, create a sovereign, one of whose functions is to arbitrate in disputes.) The terminology creates a prejudice in favour of individual rights by labelling them ‘natural’, and it carries with it a prejudice against rights which arise out of the necessity for social cooperation by making them the ‘creation’ of the sovereign and therefore ‘artificial’. The former type of right is thus made to appear more important—more ‘fundamental’—than the latter. However, it is a mistake to think that the only deep ‘fundamental’ rights we have are rights which must attach to each of us, individually, as discrete individuals (as our organs do). The mistake parallels the mistake of thinking that early humans resembled Rousseau’s ‘noble savages’ —each one a single wandering individual —and that they came together to form societies only later. 18 Against this, the evidence increasingly suggests that we evolved from already socialised

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creatures, and that the true noble savage was a gregarious chimpanzee. As ‘human nature’ is at issue here, the point is worth bearing in mind.

FURTHER READING Social contract theory’s classical texts are—of course—Hobbes (1985), Locke (1988) [1690] and Rousseau (1984) [1755]. Norman Daniels’s Reading Rawls (1975) is an excellent collection of critical essays on A Theory of Justice. There are many critical studies of Rawls’s first book but, as an introduction, I recommend Kukathas and Pettit (1990). Jeffrey Paul’s Reading Nozick (1981) parallels Daniels’s book in being an extremely useful collection. Wolff (1991) and Cohen (1995) both contain detailed critiques of Nozick’s entitlement theory.

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The upshot of the previous chapter’s discussion is that we are now faced with the following question: would a group of rational choosers, who are constrained to coexist and who are negotiating from the standpoint of an appropriately constructed original position, include a free speech principle amongst the fundamental elements of their constitution? I shall argue that, for all contractualism’s initial promise, an attempt to construct a contractualist defence of free speech must ultimately fail because it requires making too many ad hoc presuppositions. I shall concentrate for the most part on the argument of A Theory of Justice because, as I shall point out towards the end of the chapter, nothing much has been done to change the terms of the debate since 1972, when it was first published.

9.1 FREE SPEECH AS A ‘BASIC LIBERTY’ Unlike Mill’s On Liberty, which contains a whole chapter devoted entirely to the defence of ‘the liberty of thought and discussion’, Rawls’s A Theory of Justice offers no independent defence of free speech per se. Instead, free speech is treated as one item in a package of ‘basic liberties’. These are listed by Rawls as, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule

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of law. These liberties are all required to be equal by the first principle, since citizens of a just society are to have the same basic rights. (Rawls 1972:61)1 From our perspective, the passage’s most striking feature is that Rawls’s list actually contains two distinct items, each of which might reasonably be included in the category ‘free speech’ on purely firstglance grounds. One is the freedom Rawls explicitly calls ‘freedom of speech’. Note that this is placed, without reservation, in the same class as ‘political liberty (the right to vote and to be eligible for public office)’ and freedom of assembly. So, here Rawls is making a direct connection between free speech and the democratic decisionmaking system. The other basic liberty is a liberty also defended by Mill, namely ‘freedom of thought’. Note that this latter freedom is classified together with ‘freedom of conscience’ and—further—that ‘freedom of conscience’ is defined by Rawls as ‘religious and moral freedom’ or the freedom to honour one’s ‘religious or moral obligations’ (ibid.: 206). Rawls’s idea that there is a package of basic liberties clearly raises the question why treat those liberties as basic—the ones on the list— and not some other set? In answer, Rawls offers an argument for ‘liberty of conscience’ which, or so he claims, ‘can be generalised to other freedoms, although not always with the same force’ (ibid.). So here is another striking point: although Rawls lists a number of basic liberties, his rationale for including them on the list is founded on a single argument. That argument runs as follows: first, Rawls imagines his rational choosers having to decide ‘which principle they should adopt to regulate the liberties of citizens in regard to their fundamental, religious, moral, and philosophical interests’. He then writes, Now it seems that equal liberty of conscience is the only principle that the persons in the original position can acknowledge. They cannot take chances with their liberty by permitting the dominant religious or moral doctrine to persecute or to suppress others if it wishes. Even granted (what may be questioned) that it is more probable than not that one will turn out to belong to the majority (if a majority exists) to gamble in this way would show that one did not take one’s religious or moral convictions

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seriously, or highly value the liberty to examine one’s beliefs. Nor on the other hand, could the parties consent to the principle of utility. In this case their freedom would be subject to the calculus of social interests and they would be authorising its restriction if this would lead to a greater net balance of satisfaction. (Ibid.: 207) There are two observations on the general character of Rawls’s procedure to be made here. The first is that it is unsurprising that Rawls should rely so heavily on an argument which centres upon people’s unwillingness to ‘take chances’, for it forcibly reflects his contractualist scenario with the latter’s emphasis on the necessity for cooperation. The point is this: whatever cooperation’s advantages may be, it is more than likely that there will be some things which are so important to you that you will not be prepared to abandon them under any circumstances. That is just plain common sense. Your confidential diaries, your toothbrush; these are things you will want to secure in a locker marked ‘personal’. As for your ‘religious or moral convictions’, even your diaries and your toothbrush must pale into insignificance besides these. If they don’t then, as Rawls remarks, your convictions can’t be serious.2 The second observation is that Rawls is following some traditional routes. He is by no means the first to connect freedom of speech with the democratic process. Nor is he alone in modelling free speech on the liberty of conscience. Mill does much the same, as we have seen. At least, he does in the sense that his ‘classic’ case for the liberty of thought and discussion began life, in earlier hands (such as Milton’s), as an argument for religious toleration. To generalise, there is no doubt that the earlier debate over toleration in religion is the direct ancestor of the modern argument about free speech, or that it was in the later half of the seventeenth century that the former began to mutate into the latter;3 (just as On Liberty can claim an ancestor in Milton’s Areopagitica, so can Rawls’s argument for freedom of speech and liberty of conscience in Locke’s A Letter Concerning Toleration) (Locke 1689). (Locke’s Letter is discussed in chapter ten.) So, by according conceptual priority to liberty of conscience Rawls’s argument carries a certain echo of the historical sequence. Before that, let us turn to the argument with which he connects free speech and democracy. I consider this in the next section, below. I then consider whether an argument for free speech can be constructed in

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parallel with Rawls’s argument for liberty of conscience (pp. 185ff.). After that (pp. 188ff.) I generalise from my account of Rawls to conclusions which apply to contractualism generally, and not just to his argument. In the final section (pp. 196ff.) I make a few comments on the way contractualism has developed since A Theory of Justice first appeared.

9.2 FREE SPEECH AND DEMOCRACY 9.2.1 The principle of (equal) participation and the right to vote So, why should Rawls think that freedom of speech can be so easily and straightforwardly grouped together with ‘political liberty (the right to vote and to be eligible for public office)’ and with ‘freedom of assembly’? The answer is that, in his view, all are freedoms which can be subsumed under a ‘principle of (equal) participation’ which ‘requires that all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply (Rawls 1972: 221). Let me quote the passage more fully: The principle of equal liberty, when applied to the political procedure defined by the constitution, I shall refer to as the principle of (equal) participation. It requires that all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply. Justice as fairness begins with the idea that where common principles are necessary and to everyone’s advantage, they are to be worked out from the viewpoint of a suitably defined initial situation of equality in which each person is fairly represented. The principle of participation transfers this notion from the original position to the constitution as the highest-order system of social rules for making rules. If the state is to exercise a final and coercive authority over a certain territory, and if it is in this way to affect permanently men’s prospects in life, then the constitutional process should preserve the equal representation of the original position to the degree that this is feasible. (Ibid.: 221–2)

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The parallel between this and Rawls’s argument for liberty of conscience is, I think, clear enough. In both cases, the negotiators are assumed to adopt a posture which is fundamentally defensive. Just as the negotiators are assumed to have ‘fundamental, religious, moral, and philosophical interests’ (ibid.: 206), so—as in the above passage—they are assumed to need protection against ‘a final and coercive authority’ which can ‘affect permanently men’s prospects in life’.4 Even as a defence of the right to vote, Rawls’s argument is quite weak at this point. Before we get to the question of whether it is possible to generalise from it to an argument for free speech it is important to see just why. First of all, then, there is a problem with the principle of participation itself. The trouble is that this confuses two distinct ideas. Having an equal right to take part in the constitutional process is not at all equivalent to having an equal right to determine its outcome. For an analogy, take pretty well any ball game played between two teams. Take soccer, for example. For any soccer match it is quite true that every player has an equal right to participate. (This follows from the rules of soccer.) However, it is by no means true that every player has a right to score, and in that sense, to determine the outcome of the game. In short, Rawls confuses playing with scoring. To drop the analogy—and to change the terminology—you could put the point by saying that he confuses input with output. The point applies most directly to that part of the democratic process which most directly resembles an input-output mechanism, namely the voting system. Where votes (the ‘input’) are fed into a machine (the ‘democratic machine’) which ‘processes’ them to produce a decision (the ‘output’)—and where there is a ‘one person-one vote’ requirement in force—the electoral system satisfies Rawls’s requirement that each person should have an equal right to participate. However, it does nothing much to satisfy his requirement that there should be an equal right to affect the outcome. Nor does it provide an equal ‘opportunity… to influence the political process’ as Rawls also, more guardedly, insists it should, (ibid.: 224). It follows that Rawls’s argument that the right to vote is a basic liberty is fallacious. Recall that—by analogy with his argument for liberty of conscience—the choosers are motivated by the desire to protect their ‘fundamental interests’. This means that what really counts, from their point of view, is not so much participation but outcome. The former matters to them, only if it is a means to the latter. The soccer analogy may help here too. These are players whose

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sole aim is to score. They play to win, not for enjoyment or just for the sake of the game itself. However, participation in a democratic voting procedure does not guarantee an outcome which protects one’s interests, let alone one’s fundamental interests. Therefore Rawls’s choosers would not select the right to vote as an item in their package of basic liberties (or, at least, not for the reason Rawls gives). 5

9.2.2 Input—output: the Newtonian metaphor Rawls’s argument is underpinned by a certain assumption. As happens quite often in political philosophy, there is a Newtonian metaphor at work. Thus, it is familiar enough that a force can be represented as the ‘vector sum’ of a number of contributory forces. The magnitude and direction of each ‘input’ is, thus, reflected quite precisely in the magnitude and direction of the resultant force, the ‘output’. Likewise, if the ‘democratic machine’ works according to Newtonian principles—and if each vote is an ‘input’—then, by the analogy, each input will be reflected in the decision, or ‘output’. Where the one person-one vote rule applies, everyone will participate equally and will have played an equal role in determining the outcome and, in that sense at least, the principle of participation will have been satisfied. The picture is misleading because, normally, when you vote, you either win or lose. Either your preferred party gains power or it does not; either taxes are raised or they are lowered. More often than not, there are no middle alternatives. Under a ‘first past the post’ system the most that can be said for sure is that, by voting, you change the winning majority by plus or minus one compared with what it would have been without your vote. (And I am sure that something similar applies to more complex, ‘proportional’ systems.) So much for having an equal opportunity to ‘determine the outcome’.6 However, although the assumption is false, it is easy enough to make, if only because it represents a tradition of political thought which goes back at least as far as James Mill’s Essay on Government (Mill 1955) [1820]. This tends to represent the fundamental problem as that of devising mechanisms for the reconciliation of discrete individual interests. In Mill’s Essay, for example, democracy’s main purpose is portrayed as the production of an outcome which accords with the utilitarian’s, Greatest Happiness Principle.7 For a more recent—and more pertinent—example, take the way R. A.Dahl

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characterises the United States’ system in his classic work on the subject, A Preface to Democratic Theory (Dahl 1956) Dahl writes, Decisions are made by endless bargaining: perhaps in no other national political system in the world is bargaining so basic a component of the political process. (Ibid.: 150) He concludes: With all its defects, it does nonetheless provide a high probability that any active and legitimate group will make itself heard effectively at some stage in the process of decision. This is no mean thing in a political system. (Ibid.) So, just as Rawls’s negotiators each expect to have an equal influence on the outcome of the constitutional process so—under the US system according to Dahl— ‘any active and legitimate group will make itself heard effectively at some stage in the process of decision’. This merits several comments. The first is that bargaining is one thing and voting another, and that, quite often the outcome of a process of bargaining can be plausibly portrayed as a compromise, reflecting the interests of all parties, in a way that the outcome of an election cannot. Therefore—the second comment— where a system is primarily based on bargaining, the ‘Newtonian’ assumption at issue will have more credibility. Third, it is certainly arguable that bargaining plays a greater role in the US system than it does in, say, Europe, where realistically competing parties tend to be drawn from a wider spectrum of ideological positions. Perhaps Rawls’s assumption looks more plausible when viewed from his local, US, perspective. Fourth, and finally, add the consideration that Dahl’s work represents one sort of received wisdom and it is hardly surprising that Rawls should have made it.

9.2.3 The vote as a model for free speech Now for the question mainly at issue: what has all this got to do with free speech? The answer is that it has everything to do with it if Rawls is modelling the right to free speech on the pattern of the right to vote. There are three possibilities here. It could be that Rawls

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thinks that free speech and voting are precisely analogous. Alternatively, his view could be that they are loosely analogous, that is that they are alike in certain important respects, but different in others. Yet again, his view could be that they are not at all analogous and that each stands in a different relationship to the principle of participation. Let us take each in turn. To start with then, what if it is Rawls’s view that the right to free speech resembles the right to vote so closely that, in exercising either, you introduce a unit (or ‘pulse’) of input into the decision-making mechanism? If it is, Rawls’s argument is clearly open to objections parallel to those I have already raised. (Equal input would not guarantee you an equal influence on the output, and so on.) The rational choosers would not select the right to vote—at least, not for the reasons Rawls gives—so they wouldn’t select the right to free speech either. More than that, his argument would also be open to the further objection that this way of portraying the exercise of free speech is highly artificial. Think of it this way: suppose that someone invents an audiovoting machine. When the machine is introduced, you no longer vote by placing a cross against a name on a ballot paper. You simply enter the voting booth and speak the name of your preferred candidate, or party, into the machine. It then records your choice. If this were to happen, then you would vote by speaking and—given the privacy of the voting booth—you would be speaking freely. If this is an ‘exercise of the right to free speech’ it is certainly one which parallels your right to vote, but note that it bears little resemblance to activities which normally tend to be categorised as such—hence the artificiality. (For example, it would be more usual, and more realistic, to connect free speech with democracy via an argument that open debate is a precondition for informed choice— but more on that in a moment.) Note also that in the ‘voice machine’ example it is accidental that speech is used, rather than some other method for recording a preference. You might equally stick with the ballot-paper system, or introduce some other type of machine; a machine which requires you to push a button, for example, or to make a gesture at a camera. If a convincing case for free speech must do justice to the distinctive role (or roles) played by language in human life—as I think it must—then the ‘strict analogy’ interpretation of Rawls’s argument fails this test.

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What of the second possibility, that the right to free speech and the right to vote are analogous, but only loosely so. It’s a reasonably safe guess that, out of the three alternatives, this is the one which most closely approximates to Rawls’s real view. Take his reliance on the ‘Newtonian assumption’. Dahl’s way of summarising the US system’s virtues assimilates many activities—each of which is in one way or another characteristic of the democratic process—to an input–output, ‘force-field’ model. But it does so in a loose, roughand-ready way. Dahl does not mean that, for every example of pressure-group activity, or in every case where a policy is moderated to placate an active minority, we can literally think in terms of individuals who insert units of ‘push’ into the machine (quite the reverse).8 Apply the model to free speech and you get a picture in which individuals exercise that right in order to persuade others of their point of view, thereby influencing the decision-making process. It is not a picture which needs to include any improbable ‘voice machine’ scenario, and it is, of course, a fairly realistic picture of one way in which free speech and the democratic process are connected. But now we come to the real crunch, which is this: the more realistic we assume Rawls’s position to be, the less directly applicable his argument for the basic liberties becomes. Remember that this hinges on ‘The principle of equal liberty, when applied to the political procedure defined by the constitution’, that is, on ‘the principle of (equal) participation’, and that this ‘requires that all citizens are to have an equal right to take part in…the constitutional process’ (Rawls 1972:221). But free speech—even where it is exercised with the intention of influencing a decision procedure— is not a question of each individual’s having some constitutionally defined equal right to participate in a political procedure. It is not like voting, or not strictly speaking. Its manner of operation is manifold. It is less neat. At best, there is, in Dahl’s words, a ‘probability’ that one will make oneself ‘heard effectively at some stage in the process’ (Dahl 1956:150). So, with the looseness of the analogy there goes a parallel looseness in the relevance of the argument from principle. Let me spell this out. Rawls claims (i) that his hypothetical rational choosers will be concerned to defend their fundamental interests, and therefore (ii) that they will select the principle of equal participation, which entails (iii) that free speech is a basic liberty, the function of which is to protect fundamental interests through

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influencing the democratic process. I deny the logical connections. (Strangely, Rawls sometimes appears to concur, though halfheartedly. For example, he says that the argument for liberty of conscience can be generalised to other freedoms, ‘although not always with the same force’ (Rawls 1972:206). Again, after introducing the principle of participation, he adds that the constitutional process should preserve the equal representation of the original position ‘to the degree that this is feasible’ (ibid.: 222). I find this puzzling. Against Rawls, it seems to me that there can be no fuzzy border here, and that either the implications hold or they don’t. Still, I’ll leave that aside.) However, although Rawls’s argument fails, I do also think there are good independent reasons for accepting the conclusions it is designed to establish. So my next point is this. Reject the argument and accept the conclusions and you are still left with the conclusions—in this case the claims that free speech serves to protect fundamental interests and that it sometimes does so by enabling one to influence the democratic process. Just as the realism of Rawls’s conclusions varies in inverse proportion to the relevance of his formal chain of reasoning, so it varies in direct proportion to the extent to which it relies on contingency, for—note—the claims at issue are contingent claims. They may be credible, but their epistemic status is no better—and no worse—than that of Mill’s claim that the liberty of thought and discussion facilitates the pursuit of truth. Like Mill’s they may hold true for many cases, but counter-examples can be adduced to demonstrate that they do not hold for all. (If you want a real example, it is certainly not true that the Nazi Brownshirts’ Völkischer Beobachter of the 1920s and 1930s did anything to protect Jewish interests. On the contrary, it helped popularise fascism and did its bit for the coming Holocaust. Or again, your right to free speech isn’t going to help you to influence the democratic process if nobody reads the leaflet you are trying to distribute.)9 In short, Rawls’s conclusion is supposed to be logically supported by his contractualist argument but—appearances to the contrary notwithstanding—it isn’t. The former cannot be logically derived from the latter. In fact, it is a free-standing contingent claim which is open to empirical test. Before considering the point in detail, though, let us now turn to the third possible interpretation of Rawls’s position. According to this there is no analogy between the right to free speech and the right to vote. Recall that Rawls itemises these basic liberties in his own words as ‘political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly’

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(ibid.: 61; my emphasis). ‘Together with’ need not be taken to imply a parallel. Perhaps Rawls is only claiming that both liberties are related to the principle of participation, though in different ways. But, if so, what relation does freedom of speech bear to the principle? (If it paralleled voting we would at least have the semblance of an argument, albeit an argument which fails for reasons I have already given.) If you comb Rawls’s text for supporting reasons then—as before—all you find are free-standing contingent claims; ‘freestanding’, that is, in the sense that they apparently bear no special relationship to his central contractualist stance. For a good example of this, take the string of contingent assertions contained in a long paragraph on page 225 of A Theory of Justice. The first is this: We may take it for granted that a democratic regime presupposes freedom of speech and assembly, and liberty of thought and conscience. These institutions are not only required by the first principle of justice but, as Mill argued, they are necessary if political affairs are to be conducted in a rational fashion. (Ibid.: 225) Secondly, Rawls adds: While rationality is not guaranteed by these arrangements, in their absence the more reasonable course of policy is bound to be overlooked if not concealed by special interests. If the public forum is to be free and open to all, and in continuous session, everyone should be able to make use of it. All citizens should have the means to be informed about political issues. They should be in a position to assess how proposals affect their well-being and which policies advance their conception of the public good. Moreover, they should have a fair chance to add alternative proposals to the agenda for political discussion. (Ibid.) And thirdly: The liberties protected by the principle of participation lose much of their value whenever those who have greater private

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means are permitted to use their advantages to control the course of public debate. For eventually these inequalities will enable those better situated to exercise a larger influence over the development of legislation. In due time they are likely to acquire a preponderant weight in settling social questions, at least in regard to those matters upon which they normally agree, which is to say in regard to those things that support their favoured circumstances. (Ibid.) In rough paraphrase: (i) Free speech is an empirically necessary condition for a properly functioning democracy. This means (ii) that there should be a ‘public forum’ to which all have access. Otherwise (iii) the powerful—‘those who have greater private means’—will come to exert undue influence. (A page or so later Rawls comments that, ‘Historically one of the main defects of constitutional government has been the failure to insure the fair value of political liberty’ and adds, ruefully, that, ‘The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained’. This resembles the argument of Marcuse’s ‘Repressive Tolerance’ although, quite unsurprisingly, Rawls stops short of Marcuse’s advocacy of intolerance of movements from the right and toleration of movements from the left). (Rawls 1972:226; Marcuse 1969:122–3). These are claims that free speech, like voting, is a precondition for effective democracy, but they do not commit Rawls to holding that free speech and voting are closely symmetrical, or that they both perform precisely the same supporting function. I think many readers will think them reasonable and that they are— very likely—true for many cases. It’s all fine, unless you think Rawls should be doing more than making reasonable assertions which are, for the most part, true.

9.3 FREE SPEECH AND LIBERTY OF CONSCIENCE Let us now turn from Rawls’s portrayal of free speech as a ‘political liberty’, analogous to the right to vote, to his account of liberty of conscience. ‘Liberty of conscience’ is Rawls’s phrase for the liberty to express deeply held beliefs, especially religious beliefs (including atheism). It is, thus, roughly equivalent to the freedom more usually

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referred to as ‘religious liberty’. This raises the question is liberty of conscience a good model for free speech? There are some good reasons for thinking that it is not, and I shall mention three. The first is that although language frequently plays a crucial role within the context of religion and religious practice it is not a role from which one can generalise to other areas in which language figures. For an obvious case in point, take prayer—talking to God or some other supernatural being. Prayer is crucial to much religious practice, but so far as I can see it is not an activity from which one can generalise to other uses of language, particularly those uses which one might conceivably want to protect with a free speech principle. It is worth recalling some of the features which, as I pointed out some time ago, characteristically tend to distinguish religious belief from other forms of belief.10 There is, first, the fact that a religious belief tends to be more or less exclusive to a specific identifiable group—the Muslims, the Christians, the Southern Baptists—and, second, there is the fact that, in order to hold it, it tends to be the case that you must also hold other, related, beliefs which are also exclusive to the groups. It is this which distinguishes a religious belief from, say, a scientific belief. The latter is related to other beliefs, standards of proof, and so on, which are more diffusely spread. (It is this which distinguishes, for example, the fundamentalist belief that the fossil record is consistent with biblical text from the scientific belief that it yields evidence of dinosaurs, etc. In order to hold the former, you have to believe that the Bible is the word of God, that its texts always trump other teachings, and so on. To be inclined towards the latter, you have to be aware, for example, that all animal skeletons are modifications of a single standard pattern; that characteristics in species can be bred over generations, sometimes quite quickly, as in the standard undergraduate experiment with the fruit fly drosophila, and so on. The difference is that, in order to hold the latter, you do not have to be a member of some more or less exclusive group.) It seems that features typical of religious belief are atypical of beliefs in general. This casts doubt on the possibility of generalising from a defence of the liberty to hold and express them to all beliefs. The second reason for thinking that liberty of conscience is not a good model for free speech is that—again characteristically and on the whole—a religion is more than just a belief system. In religion, the belief system is—typically—just part of a complex to which participation in various forms of activity—including non-linguistic

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activity—is equally crucial. The periodic ritual, the pilgrimage, the observance of holy days and holy places, of fasts, all these can be constitutive of a religion too. To have a religion is, thus, quite usually, to have a certain way of life. Again, it is not obvious that an argument defending the right to exercise speech within the context of a way of life can be generalised to cover freedoms one might want to protect with a free speech principle. The point is related to my third reason for rejecting liberty of conscience as a model for free speech generally. This is that if Rawls has a good argument for religious tolerance in a world of diverse and conflicting belief it is because choosers strike a posture which is fundamentally defensive. (They want to protect those things with which they are not prepared to ‘take chances’.) (Rawls 1972:207). We should note that in this respect he is continuing a liberal tradition which is also exemplified by—for example—Mill’s famous ‘sphere of action’ passage. As you will recall, Mill wrote that ‘There is a sphere of action in which society, as distinguished from the individual, has if any, only an indirect interest’. And he went on to add that the sphere comprises, amongst other things, ‘liberty of conscience in the most comprehensive sense’ (Mill 1859:1, §12). Similarly, Rawls’s choosers erect a defensive palisade.11 Now, the question is whether Rawls’s argument for liberty of conscience can be generalised to an argument for free speech. I don’t think it can. Consider the following example. An investigative journalist has come across information which will seriously compromise an important public figure. Suppose that he is challenged for a reason why he should be left free to publicise the material and to continue with his investigation and that—by analogy with Rawls’s argument—the reason he gives for being left unhindered is ‘because it is supremely important to me that I be left to get on with it’. Plainly, he has not offered a good justification for the freedom of the press to publish the results of investigative journalism. Quite the contrary; by equating his activities with selfexpression he seems to have reduced their significance. Of course, it could be that, in the case of this journalist, his activities form an important part of his self-development, his self-expression, and so on—the same could be true for his religion—but all that is beside the point. In this sort of case it is right to expect a justification in terms of an activity’s public function, its relation to ‘the public interest’, for example; that is, not with an argument paralleling Rawls’s for liberty of conscience. Or again, take intellectual activity in the pursuit of truth, as

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defended by Mill with his argument for ‘the liberty of thought and discussion’. In parallel with Rawls’s argument for the protection of ‘fundamental religious, moral, and philosophical interests’ one can —I suppose—portray this as a set of activities in which those who wish to should be left free to engage. However, if Mill is right, this would be to miss the point, because the point lies in the activity’s effects; that is, in the benefits it yields for humanity generally. Recall, too, that (as it transpired from our earlier discussion of Mill) Mill’s argument is not so much false as more limited in its range of application than it is often assumed to be. It is beginning to look as if something similar is true in Rawls’s case.

9.4 FROM THE CONTRACT TO FREE SPEECH? Let us now take stock of the direction this argument is taking. Things have moved on since 1972. Of course they have, but we are already in a position to draw three conclusions concerning the relevance of contractualism to the philosophical questions surrounding free speech. This is because the flaws I have identified in Rawls’s argument are not specific to Rawls’s first book. On the contrary, they have their sources in features of the contractualist stance itself. Any contractualist derivation of a right to free speech must encounter parallel difficulties, and A Theory of Justice provides just one illustration of how they arise.

9.4.1 The defensive posture For the first conclusion, consider the feature to which I have just been referring, that Rawls’s choosers negotiate from positions which are fundamentally defensive. This flows quite naturally from some basic contractualist assumptions. There are two, the first being that the choosers have differing plans, purposes, and value systems. This assumption is basic in the sense that new wave contractualism— Rawlsian and post-Rawlsian—derives much of its point from this assumption of an irreducible difference between individual ‘conceptions of the good’, with its logical consequence that the choosers will not automatically agree to some given set of principles, as they might in an Anarchist Utopia. The second basic assumption is that the choosers are not completely altruistic. From this it follows that every individual will want to make provision for those things

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he or she will want to protect whatever the preferences expressed by the others may be. As I put it earlier, there has to be a locker for you—one marked ‘personal’—ready to take such items as your toothbrush, your personal diary, and your ‘fundamental religious, moral, and philosophical interests’. To derive a right to free speech from these assumptions all you need to add is an argument to show how that right serves to defend whatever it is you want to put in the locker. It follows—as a first conclusion—that any contractualist derivation of free speech—not just Rawls’s —must prioritise that liberty’s defensive functions and relegate others to the background. This is not a mistake exactly, but it is certainly a distortion. The trouble with it is that it undervalues language by representing the latter’s role too narrowly. The point is that language does not have a single role, not even a small bundle of related roles and that—on the contrary—our ability to use language is a precondition for a huge range of other abilities. To appreciate just how much of a precondition it is, it is well worth reflecting that what goes for language is what goes for many of the other characteristics which are sometimes used to distinguish humans from other species. (These include the characteristics picked out by traditional philosophers’ definitions of the form, ‘“Man” is a…fill in the blank… animal’.) For example, just as humans are language-using creatures, unlike any other known animal, so, unlike (most) other animals, we are bipedal. Likewise, we are the only known animals to have opposable thumbs and—as compared with the others—our brains occupy a huge proportion of our total volume. None of these features has a single specific function, but each is a precondition for the exercise of many other powers. Thus, the fact that we stand upright means that our arms are left free to manipulate our surroundings in all sorts of ways, and it means that we can use tools. Our opposable thumbs help us grip effectively. Our large brains are the empirical precondition for our linguistic ability and our ‘rationality’ generally; and so we are enabled to constantly invent new uses for our arms and thumbs, and—unlike ants or chimpanzees—to change and adapt the organisation of the groups with which we live. I suppose there is a relationship between such features and our superior adaptability. We are not specialised creatures. My claim is that attributing just one function to language— and, by extrapolation, to free speech— is like saying, ‘The thumb is for gripping spanners with’. I am suggesting that a full account of free speech must recognise the onesidedness of this.12

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So, now imagine a group of philosophers. They are discussing the function of—say—legs. One (Mill) is impressed by the ideal of progress. It is his contention that legs are for striding purposefully forwards and for riding bicycles. Another (Rawls) is all for the protection of fundamental interests. In his view, legs are for wearing big boots and making sure that nobody comes too close. Yet another (Rorty) likes to emphasise the playful side of things. He thinks that legs are just for dancing. Nobody gets the full picture because everyone’s vision is constricted, albeit by a differently constructed pair of spectacles in each case.

9.4.2 The ‘rational choice’ model and the need for information The second conclusion is this: for any social contract argument, the relevance of the hypothetical ‘rational choice’ or ‘bargaining game’ element varies in inverse proportion to the quantity of knowledge the rational choosers are permitted to have. This conclusion applies —I repeat—to any social contract argument. Put it this way: it is true enough that there has to be some relationship of representation between the hypothetical rational choosers in their hypothetical situation and ourselves in our own. (I have already argued the point at some length.)13 However, there must also be differences. If there were none, there would be no point in telling the hypothetical story. You might just as well cut it out and concentrate on what real people would (or should) choose in a real situation. In the argument of A Theory of Justice, the difference is one of perspective and it results, in turn, from ignorance on the part of the choosers. As Rawls insists, ‘No one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength’ …and so on (Rawls 1972:137). The imposition of this ‘veil of ignorance’ is meant to ensure that the parties ‘evaluate principles solely on the basis of general considerations’ (ibid.). According to Rawls they must if his argument is to mirror the main contours of the concept of justice, and—as I am sure is very well known—it is from behind it that they select his two basic principles. Now, the problem I am thinking of arises because complete ignorance makes any sort of choice impossible. Suppose you are told that you have a choice between two alternatives, A and B, but that you are given no further information. All you know is that A

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and B are there to be chosen between. In such a situation, it is obvious that no real choice is possible. At the very least you need to know what sorts of things A and B are—varieties of pizza, election candidates, principles of justice—and, depending on the example, it is very likely that you will need to know more than that. It follows that, however hypothetical a ‘contract’ story may be, some knowledge must be built in to the argument. Sure enough, in his derivation of the two principles Rawls satisfies this requirement by granting his choosers a bare minimum of relevant information. Thus, although no one knows ‘his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk’ (ibid..), everyone knows that he or she will have some ‘rational plan of life’ and some sort of attitude to risk. Again, although ‘no one knows his place in society, his class position or social status’ (ibid.), everyone knows that he or she will occupy some place in society and, indeed, that there is a probability of finding himself or herself amongst the least advantaged. They are even granted knowledge of politics, economics, and psychology. Even so, this is not granting everything, and there is still theoretical work for ignorance to do. The choosers are not permitted to know ‘how the various alternatives will affect their own particular case’, and are consequently obliged to evaluate principles solely on the basis of general considerations’ (ibid.: 136– 7). Rawls’s claim that, ‘the theory of the good used in arguing for the principles of justice is restricted to the bare essentials’ (ibid.: 396) is, I think, perfectly credible. But deriving principles which operate at a fairly high level of abstraction is one thing. It is not necessarily so easy to move from there to the more concrete and specific. As we have seen, that is what Rawls wants to do. In other words he wants to move from the derivation of his principles to the justification of a specifically liberal value system. This is instantiated by, for example, his argument for the basic liberties, ‘roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought’, and the rest (ibid.: 61). I suggest that, where this sort of attempt to move from the relatively abstract to the relatively specific is made, two things are guaranteed to happen. The first is that the hypothetical ‘rational-choice’ scenario will lose its grip. This is bound to happen because there won’t usually be much by way of a strict analogy between the hypothetical scenario and the real-life contexts to which

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the specifically liberal value system is meant to apply. The latter will lack the former’s formalistic, game-like structure. We have seen this instantiated in Rawls’s attempt to use his ‘choice’ story to link freedom of speech with the democratic process. There, the hypothetical scenario drops the more out of account, the less the exercise of free speech is construed on the model of voting (which is, at least, a structured, game-like procedure). The second is that the real work will be done, instead, by an appeal to (actual or supposed) contingent fact. We have also seen this process at work in Rawls’s more ‘realistic’ arguments that free speech is a basic liberty; for example, in his argument that democracy requires free speech because it requires a ‘public forum’ (ibid.: 225). The rational choice element in the argument is, thus, increasingly sidelined.

9.4.3 Contractualism and consequences The third conclusion derives from the fact that the argument is forced to rely, instead, on what I earlier described as ‘free-standing’ contingent claims. But, before turning to it, let me just summarise the situation so far. Consider the following: Claim One: If we know that propositions, p…pN, are contingently true it follows that we should treat liberty, L, as a basic liberty. Claim Two: If they know that propositions, p…pN, are contingently true it follows that rational choosers negotiating from an original position will treat liberty, L, as a basic liberty. Now ask, is the argument sketched by Claim One strengthened by the addition of the italicised phrase in Claim Two? It seems that it is not, provided, that is, that one assumes the ‘we’ of Claim One to refer to a group of individuals each of whom regards the others as moral equals, or as deserving of ‘equal concern and respect’ in Dworkin’s phrase, or as ‘ends in themselves’ in Kant’s.14 However, the proviso ought to go without saying, for individuals who did not regard each other in this sort of way would not be interested in determining a set of basic liberties in the first place. The assumption is, thus, implicitly ‘written in’ to the claim. Of course, it is arguable that individuals are more likely to treat each other with equal moral respect where certain facts are the case; for example, where they are constrained to live cooperatively, where ends differ and conflict,

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and where no one person or group is in a position to impose his or her will on the others. But asserting that likelihood is still a far cry from the assumption of a complex contractualist, or ‘rational choice’, apparatus. In any case, Claim One is—logically speaking—quite independent of either. It follows that the hypothetical choosers of Claim Two have just the same reasons as the ‘we’ of Claim One do for selecting liberty, L. It also follows that they have no other reasons for selecting it. That said, and turning more directly to the third conclusion, let us now ask is Claim One a contractualist claim? To put it more accurately, is the argument it schematically represents contractualist in structure? Now, the fact that it assumes liberty, L, to be selected by individuals, each of whom regards each of the others as a moral equal certainly suggests that we should think of it that way. The fact that I have juxtaposed it against Claim Two helps cast it in this light too. Against this, though, it is important to see that a lot hangs on what p…pN are, as well as on what it is about them that persuades ‘us’ or ‘the choosers’ to value L. So now assume that p…p N are the central theses of Mill’s argument for the liberty of thought and discussion, and that L is that liberty itself. In this case we—or the choosers—will be selecting the liberty of thought and discussion for just the reasons Mill gives. If you think Claim One is contractualist, and if you also bear in mind that Mill’s argument is essentially consequentialist, this can look odd. Aren’t contractualism and consequentialism supposed to be in conflict—logical contradictories—so isn’t there a sort of paradox here? I don’t think there is. After all, with its invocation of progress, Mill’s argument is designed to appeal to our sense of ourselves as social beings. We are invited to favour the liberty of thought and discussion for all, equally, to make use of, not for private or idiosyncratic ends, but for the sake of the improvement and ‘wellbeing of mankind’ (Mill 1859: §32). To appreciate its force, you have to view things from a standpoint which is, in a sense, ‘universal’. In other words, On Liberty is not intended to be read as light entertainment, as escapism or for its romantic interest, and nor should you approach it in the hope of discovering, by the end, that you are the lucky winner of a holiday for two in some resort. On the contrary, you have to approach it as a moral agent selecting a rule which is to apply, equally, to others. This means adopting the standpoint presupposed by Claim One. It follows that Claim One is,

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so to speak, bivalent. As we have seen, it can be treated as a schematic representation of a contractualist argument, but it serves equally well as a schematic representation of Mill’s ‘consequentialist’ case for the liberty of thought and discussion. What else follows? I do not mean to argue that contractualism collapses into consequentialism. Not at all; on the meta-ethical level, as philosophical theses about the nature and subject matter of morality, they are, I am sure, quite distinct. And, as Scanlon (1982) has pointed out, it is consistent with this that the normative implications of such theses can overlap to a large extent. 15 Nevertheless, it does follow that, on a more practical level, when it comes to the justification of specific liberties—or, at least, when it comes to arguing for free speech—there is a well-grounded expectation that contractualist and consequentialist arguments will exhibit similar strengths and weaknesses. That is the third conclusion.

9.5 CONTRACTUALISM SINCE 1972 If anything, the most recent developments within social contract theory have only tended to confirm the above conclusions. Let me just give a couple of examples. The first is Rawls’s own Political Liberalism (Rawls 1993). In this work, the structural parallels between the original position’s main features and the ‘real-world’ operation of basic liberties are drawn still more loosely than they are in A Theory of Justice. Its arguments rest still more heavily on free-standing contingent claims. (Political Liberalism is presented more as an elaboration and a further defence of his earlier work’s main themes than as an alternative theory. Of course, it could be that Rawls has elaborated his theses so much that they amount to an alternative theory, but that is not a question we need pursue here.) Just for instance, the task of determining the basic liberties is now described by Rawls as that of ‘asking which things are generally necessary as social conditions and all-purpose means to enable persons to pursue their determinate conceptions of the good and to develop and exercise their two moral powers’ (Rawls 1993:307). (The ‘two moral powers’ are a capacity for a sense of justice and a capacity for a conception of the good.) (Ibid.: 19 and 81.) More specifically, ‘freedom of thought and freedom of association’ are held to be ‘institutional

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conditions once other basic liberties are guaranteed’ (ibid.: 309). They are thus (empirically) ‘necessary to give effect to freedom of conscience and the political liberties’ (ibid.). My point is that any claim according to which the exercise of such-and-such powers and abilities requires the presence of such-and-such ‘social’ or ‘institutional conditions’ is contingent, and can stand or fail against empirical test. It is noticeable too that, in the later work, Rawls continues to connect freedom of speech with democratic decisionmaking procedures, and in similar ways. So, for example, his remark in Political Liberalism that These basic liberties require some form of representative democratic regime and the requisite protections for the freedom of political speech and press, freedom of assembly, and the like’ (ibid.: 335) more or less parallel his claim, in A Theory of Justice, that, ‘We may take it for granted that a democratic regime presupposes freedom of speech and assembly, and liberty of thought and conscience’ (Rawls 1972:225). Much the same comments apply to both. (See my earlier discussion, pp. 184ff.) Finally, it is equally noticeable that the argument for liberty of conscience as a bulwark in the defence of those convictions we ‘cannot take chances’ with is repeated in Political Liberalism (Rawls 1993:311), although it is supplemented with two further arguments. One connects liberty of conscience with the ‘moral power’ to ‘form, revise, and rationally pursue a determinate conception of the good’, and it asserts that ‘liberty of conscience, and therefore the liberty to fall into error and to make mistakes, is among the social conditions necessary for the development and exercise of this power’ (ibid.: 312–13). The argument is certainly persuasive, but it has to be said, nevertheless, that it rests on the supposition of a contingency. In like manner, the other connects liberty of conscience with our ability ‘to think of ourselves as affirming our way of life in accordance with the full, deliberate, and reasoned exercise of our intellectual and moral powers’ (ibid.: 313). As Rawls emphasises the point, ‘in addition to our beliefs being true, our actions right, and our ends good, we may also strive to appreciate why our beliefs are true, our actions right, and our ends good and suitable for us’ (ibid.). (Here Rawls acknowledges a parallel with Mill. ‘As Mill would say’, he writes (ibid.), ‘we may seek to make our conception of the good “our own”; we are not content to accept it ready-made from our society or social peers’.) In summary, there is nothing in Rawls’s later work to suggest a reason for withdrawing or even modifying the conclusions I have already drawn. The same goes for the form of contractualism first

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outlined by Scanlon (1982) and subsequently given a fuller treatment by Brian Barry in his book Justice as Impartiality (Barry 1995). As Scanlon puts it, ‘a contractualist account of the nature of moral wrongness might be stated as follows’: An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement. (Scanlon 1982:110) I have only one comment to make on this. It concerns Scanlon’s rationale for the inclusion of the phrase ‘no one could reasonably reject’ in the above specification. Scanlon writes: The contractualist account of moral wrongness refers to principles ‘which no one could reasonably reject’ rather than to principles ‘which everyone could reasonably accept’ for the following reason. Consider a principle under which some people will suffer severe hardships, and suppose that these hardships are avoidable. That is, there are alternative principles under which no one would have to bear comparable burdens. It might happen, however, that the people on whom these hardships fall are particularly self-sacrificing, and are willing to accept these burdens for the sake of what they see as the greater good of all. We would not say, I think, that it would be unreasonable of them to do this. On the other hand, it might not be unreasonable of them to refuse these burdens, and, hence, not unreasonable for someone to reject a principle requiring him to bear them. If this rejection would be reasonable, then the principle imposing these burdens is put in doubt, despite the fact that some particularly self-sacrificing people could (reasonably) accept it. Thus it is the reasonableness of rejecting a principle, rather than the reasonableness of accepting it, on which moral argument turns. (Ibid.: 111–12) My comment is that, if this is right, I can’t see how a principle

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guaranteeing the unconditional protection of free speech could be derived from the Scanlon/Barry position. On the contrary, if putting up with the existence of—say—Holocaust denial literature is a ‘burden’ such that ‘it would not be unreasonable for someone to reject a principle requiring him to bear’ it then ‘justice as impartiality’, taken seriously, has the same practical consequences as Mill’s argument taken seriously.

FURTHER READING Two ‘classical’ attempts to connect the value of free speech with democratic institutions are Hume’s ‘Of the Liberty of the Press’ (1953a) [1752] and (sections of) Alexis de Tocqueville’s Democracy in America. (1968) [1835]. Neither is especially abstractly philosophical in character (and, perhaps, both are the stronger for that). On Rawls’s treatment of free speech as a ‘basic liberty’ H.L.A. Hart’s ‘Rawls on Liberty and its Priority’ (1975) is especially relevant. The earlier chapters of Rawls’s Political Liberalism are a response to this. Barry’s Justice as Impartiality apart, other prominent examples of post-Rawlsian contractualist argument are Gauthier (1986) and Raz (1986). So far, Rawls’s second book has attracted far less critical attention than his first. However, the judicious last chapter of Kukathas and Pettit (1990) is worth reading.

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CHAPTER X

Concerning toleration

The main subject of the earlier sections of this chapter is the argument of John Locke’s A Letter Concerning Toleration (Locke 1689). In the later sections, I offer a brief summary and assessment of the conclusions which arise from Part Two’s discussion. To begin with Locke, it would have been necessary to consider his argument at some point in this discussion if only because the Letter is a celebrated work with a theme related to my own. But there is, in addition, a good reason for considering it at just this juncture, namely that Locke’s argument prefigures Rawls’s in certain ways. I do not mean to suggest that the line of descent from the Letter to Rawls’s argument is as clear and direct as that from Milton’s Areopagitica to Mill’s defence of ‘the liberty of thought and discussion’. All I have in mind is that Locke’s ‘toleration’ is pretty much, if not exactly, synonymous with Rawls’s ‘liberty of conscience’. (And, indeed, when Locke writes that, ‘Liberty of Conscience is every man’s natural right’ (Locke 1689: §71) he uses Rawls’s very phrase.) 1 So, if, with the Letter, we are presented with an earlier argument for a liberty which is virtually equivalent to one defended in our own time by Rawls, there could be something to learn from a comparison of the two. The qualification that they are ‘not exactly’ synonymous has to be included only because Locke’s subject is specifically—and as he says in his opening sentence—‘the mutual toleration of Christians in their different professions of religion’ (ibid.: §1). By contrast, Rawls casts his net wider. As we have seen, he argues for toleration between anyone with ‘fundamental religious, moral and philosophical interests’ to defend (Rawls 1972:206). So, in this instance, we are faced with a second example of a philosophical position which began life in a religiously defined context, but which then became broadened to cover the secular. There ought to be

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something to learn here too, just as there was in the case of Milton’s legacy to Mill.

10.1 LOCKE’S ARGUMENT FROM ‘JUST BOUNDS’ Subject matter apart, are there other ways in which Locke’s argument compares with Rawls’s? It would certainly be stretching things a little to describe the Letter as an exercise in ‘contractualism’. There is no sufficiently developed reference, explicit or implicit, to the narrative of humanity’s transition from State of Nature to Civil Society. (In any case, readers will be aware that Locke’s substantial contribution to contractualism was not the Letter, but his Second Treatise (Locke 1988), a work which makes no reference to free speech, or liberty of conscience.) However, the description would not be completely misplaced, for it is characteristic of a contractualist argument that it should attempt to justify an institution—the state, say—in terms of the reasons people who lacked it would (supposedly) have for establishing it; that is the purpose for which it was—or might have been—initially designed to serve. Quite similarly, Locke’s argument for toleration—which rests on there being a clear dividing line between the powers of state and church—is drawn with the help of a distinction between their contrasting purposes. Locke writes, I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one and the other. (1689: §4) Such an argument from ‘just bounds’ makes it a necessary justifying condition for the justifiable exercise of power by an institution that the institution should be serving its purpose or ‘proper function’ in so exercising it. To appreciate the distinctive character of this type of argument, note that it cannot rest on appeal to unintended side-consequences or ‘spin-off’. For example, an argument that, whatever the justification for the state may initially have been, one thing now going for it is that it keeps the trains running—or an argument that, whatever criticisms there are to be

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made of the space programme, at least it has helped produce the non-stick frying pan—would not be an argument from just bounds. Here is how Locke defines ‘the commonwealth’: …a society of men constituted only for the procuring, preserving, and advancing of their own civil interests. (Ibid.: §5) And here is how he defines ‘a church’: …a voluntary society of men, joining themselves together of their own accord, in order to the public worshipping of God, in such a manner as they judge acceptable to him, and effectual to the salvation of their souls. (Ibid.: §14) From Locke’s definition of the commonwealth it follows, first— or so he holds—that the state official or ‘magistrate’ has a duty of impartiality, that is, ‘by the impartial execution of equal laws, to secure unto all the people in general, and to every one of his subjects in particular, the just possession of these things belonging to his life’ (ibid.: §7). Secondly, if, in addition, ‘the whole jurisdiction of the magistrate reaches only to these civil commitments’ — and since ‘civil interest’, as defined by Locke, is ‘life, liberty, health, and indolence of body; and the possession of outward things, such as money, land, houses, furniture, and the like’ (ibid.; my emphasis) —a duty of religious toleration on the part of the civil magistrate follows. The conclusion is reinforced by a number of subsidiary points; first, ‘because it appears not that God has ever given… authority to one man over another, as to compel any one to his religion’, it follows that ‘the care of souls is not committed to the civil magistrate’ (ibid.: §9);2 second, it cannot be committed to the magistrate because ‘his power consists only in outward force’, whereas ‘true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God’ (ibid.); third, as for the salvation of souls, ‘In the variety and contradiction of opinions in religion, wherein the princes of the world are as much divided as in their secular interests’, fewer would be saved by state intolerance because ‘one country alone would be in the right and

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all the rest of the world put under an obligation of following their princes in the ways that lead to destruction’ (ibid.: §12). In sharp contrast with the above, from Locke’s definition of a ‘church’ as ‘a free and voluntary society’ (ibid.: §15), ‘it necessarily follows, that the right of making its laws can belong to none but the society itself, or at least, which is the same thing, to those whom the society by common consent has authorised thereunto’ (ibid.). From this—or else from both definitions taken jointly—other conclusions follow; just for example, that a true church does not require ‘a bishop, or presbyter, with ruling authority derived from the very apostles’ (ibid.: §18); that ‘No private person has any right in any manner to prejudice another person in his civil enjoyments, because he is of another church or religion’ (ibid.: §27); and that, likewise, this ‘mutual toleration of private persons’ must be understood ‘also of particular churches’ (ibid.). Finally, you only need to look back over the foregoing summary to see that the ‘just bounds’ argument is strongly underpinned by another. According to this, state interference with religious practice is not so much morally objectionable as pointless; the reason being that however much you can use force and the threat of force to change someone’s outward behaviour, you will never manage to touch that person’s inner convictions. (And) such is the nature of the understanding, that it cannot be compelled to the belief of any thing by outward force. (Ibid.: §10) (This is a variant of the argument that thought, being necessarily private, must always be free. You may recall that, much earlier on, I criticised it for its over-optimism. Locke underestimates the degree to which thought-control is possible.)3

10.2 TOLERATION AS A MODEL FOR FREE SPEECH If Locke’s Letter is one of the liberal canon’s key texts, and free speech a key liberal principle, can’t the argument of the former be used to cast some light on the latter? I wouldn’t blame any reader for having come to this discussion equipped with the prior

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assumption that it can. But, having come so far, we are now in possession of at least two good reasons for thinking that toleration as understood by Locke—that is, as religious toleration between different Christian sects—might not, on examination, turn out to be a good model for free speech generally. The first is that ‘liberty of conscience’ as understood by Rawls did not turn out to be such a good model for the latter.4 Because Rawls’s ‘liberty of conscience’ is pretty close to Locke’s ‘toleration’ there are, thus, good grounds for the expectation that similar reasoning will turn out to apply to both. The second is that arguments which make perfect sense when restricted to the defence of religious toleration do not always retain their full conviction when transposed to secular contexts. This was demonstrated by my earlier comparison of Areopagitica with On Liberty. Therefore, there is some justification for the expectation that a comparison of A Letter on Toleration with the relevant sections of A Theory of Justice will yield a similar result. Will a closer examination of Locke’s argument confirm these expectations? Let us proceed by taking the reasons for which it turned out that Rawls’s ‘liberty of conscience’ makes a rather unconvincing model for free speech, and then let us ask whether the same, or similar reasons, apply in the case of Locke. As you will recall, those reasons were as follows: first, the role language tends to play in specifically religious contexts is idiosyncratic in the sense that it is unrepresentative of the role of language generally. Second, modelling free speech on liberty of conscience represents the former as fulfilling a role which is pre-eminently defensive. From both considerations it follows, thirdly, that Rawls’s argument is inaccurate in the sense that it represents the role of language in a partial manner. It is not an argument from which we can gain the full picture. Therefore, as a potential defence of free speech it is, at best, equally partial. Now consider the following passage. It conveys a clear and forceful impression of just what Locke is out to defend, which is why I have quoted it at length. But now, if I be marching on with my utmost vigour, in that way which, according to the sacred geography, leads straight to Jerusalem; why am I beaten and ill used by others, because, perhaps, I wear not buskins; because my hair is not the right cut; because, perhaps, I have not been dipt in the right fashion; because I eat flesh upon the

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road, or some other food which agrees with my stomach; because I avoid certain by-ways, which seem to me to lead into briars and precipices; because, amongst the several paths that are in the same road, I choose that to walk in which seems to be the straightest and cleanest; because I avoid to keep company with some travellers that are less grave, and others that are more sour than they ought to be; or in fine, because I follow a guide that either is, or is not, clothed in white, and crowned with a mitre? Certainly, if we consider right, we shall find that for the most part they are such frivolous things as these, that, without any prejudice to religion or the salvation of souls, if not accompanied with superstition or hypocrisy, might either be observed or omitted. (Locke 1689: §36) It is quite obvious that Locke is mainly concerned to argue for toleration between individuals who wish to engage in differing forms of religious practice. As for free speech, notice, first, that no specifically linguistic practice is even mentioned in the passage, at least not explicitly. There are certainly no words or phrases of the sort one might expect to find if this were meant to count as a defence of free speech, or even if free speech had been somewhere at the forefront of Locke’s mind. I mean words and phrases such as ‘speech’, ‘opinion’, ‘thought’, ‘thought and discussion’, and so forth. In fact, such phrases hardly figure throughout the Letter’s text (though they do a little, as I shall mention in a moment). In the first instance, what this means is that some work would have to be done by anyone trying to extrapolate Locke’s argument to a defence of free speech. Specifically, you would have to begin by introducing a reference to intrinsically linguistic practices—that is, practices to which the use of language is necessary and of the essence—to parallel the practices mentioned by Locke: wearing buskins, wearing one’s hair in ‘the right cut’, being ‘dipt in the right fashion’, and so forth. Actually, this would not prove too difficult. For example, it seems reasonable to think that prayer—talking to God—is ‘intrinsically linguistic’ in the sense required. (At any rate, I don’t see how it can be done without the use of speech, to yourself or aloud.) However, this would not much help the proposed extrapolation because a use of speech counts as prayer, and not, for example, as just talking to oneself or to the sky—only when it is set

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in the context of a religious practice or set of practices. The trouble is that you would still be faced with the problem of generalising from this type of activity to others, including many you might wish to defend in the name of free speech or thought and discussion. Still, I don’t want to rehearse an argument I have already used once —against Rawls—so I will just state that I do not believe the generalisation can be convincingly drawn and that, as a logical consequence, my first objection to Rawls’s argument, that it attempts to generalise from too idiosyncratic a context, applies equally here. Not that this need bother Locke, who was, after all, only concerned with religious toleration. But it ought to give pause for reflection to modern liberals who may be inclined, a little too straightforwardly, to think of Locke’s position as a direct forebear of their own. And there is something else too. A second noteworthy feature of the passage quoted is that the differences he cites— differences in style of dress, habit of worship, and dietary code— are described by Locke as ‘frivolous things’. They are, he says, things that, ‘without any prejudice to religion or the salvation of souls… might either be observed or omitted’ (ibid.). This shows that Locke is assuming the existence of an underlying consensus between diverse Christian factions. ‘Christian brethren’ are, as Locke goes on to say, ‘all agreed in the substantial and truly fundamental part of religion’ (ibid.). So far as Locke is concerned, it seems that toleration is possible only where there is consensus. Notice also that Locke repeatedly supports his argument for the consensus itself with reference to specifically Christian virtues such as peaceableness and forgiveness. This he does, for example, when he states, ‘that the church of Christ should persecute others, and force others by fire and sword to embrace her faith and doctrine, I could never yet find in any of the books of the New Testament’ (§22); or, again, when he insists that, ‘If Christians are to be admonished that they abstain from all manner of revenge, even after repeated provocations and multiplied injuries; how much more ought they who suffer nothing, who have had no harm done them.’ (ibid.: §34). If Locke is right, it could be that toleration is a virtue whose exercise is a realistic possibility only for Christians. Once again, this need not bother Locke. Toleration between Christians is all that concerns him. However, it could create problems for any attempt to generalise his argument to cover secular contexts. In summary, then, there are two main questions at issue here. One is, can Locke’s defence of toleration between Christian groups

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be developed or extrapolated into a defence of a general toleration, not just between Christians but between followers of other religions, between atheists, and—crucially—between the public at large and groups identified, by their own members and by others, in terms of non-religious criteria such as ethnicity, gender, sexual orientation, disability, and so on? If Locke’s Letter contains a lesson for our own times, there must be an affirmative answer to the question. Such an answer is possible, even if Locke is right in thinking that toleration requires an underlying consensus, provided that a secular element can be substituted for his appeal to specifically Christian virtues in support of his claim that consensus can be achieved. Here, I will only suggest that this can be done, or perhaps it can, if there is any substance to the modern liberal’s hope— Rawls’s or Scanlon’s (and Barry’s)—that there are regulative principles which persons of good will can recognise, even where those persons have differing ‘conceptions of the good’. (I leave open the question of whether such principles can be discovered.) The other question relates more specifically to free speech. It is, is there anything in Locke’s defence of toleration between Christian groups which can be developed into a defence of free speech? It is here that the second objection I raised against Rawls’s argument— that it represents free speech on a pre-eminently defensive model— can be brought in to play against Locke’s. So, now consider the following passage: If Christians are to be admonished that they abstain from all manner of revenge, even after repeated provocations and multiple injuries; how much more ought they who suffer nothing, who have had no harm done them, to forbear violence, and abstain from all manner of ill usage towards those from whom they have received none! This caution and temper they ought certainly to use towards those who mind only their own business, and are solicitous for nothing but that, whatever men think of them, they may worship God in that manner which they are persuaded is acceptable to him, and in which they have the strongest hopes of eternal salvation. In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own conveniency, and follow what course he likes best. No man complains of the ill-management

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of his neighbour’s affairs. No man is angry with another for an error committed in sowing his land, or in marrying his daughter. Nobody corrects a spendthrift for consuming his substance in taverns. Let any man pull down, or build, or make whatsoever expenses he pleases, nobody murmurs, nobody controls him; he has his liberty. But if any man do not frequent the church, if he do not there conform his behaviour exactly to the accustomed ceremonies, or if he brings not his children to be initiated in the sacred mysteries of this or the congregation; this immediately causes an uproar, and the neighbourhood is filled with noise and clamour. (Ibid.: §34; my emphasis) The virtue of toleration is, thus, the virtue of minding your own business; of rubbing along with your neighbours, of keeping yourself to yourself and your nose out of their affairs. As for the third objection to Rawls’s argument—that it represents the role of language in too narrow and partial a manner—to see that it applies equally to Locke, I need only add the following. To the extent that there is an argument for free speech latent in this passage at all, it can only be an argument which portrays it as a relatively ‘frivolous’ activity with like-minded co-religionists as the participants. On this account, the exercise of free speech by ‘those who mind only their own business’ is permissible where it takes place, as the phrase has it, ‘in private between consenting adults’. 5 To appreciate the limitations of this vision you need only contrast it with Mill’s, where the exercise of thought and discussion is portrayed as a question of reaching out to others and engaging them in debate. The activity has a point precisely because the others are not co-religionists, or like-minded. (And, whatever the drawbacks of Mill’s argument may be, it is certainly the more inspiring of the two.)

10.3 LOCKE’S ARGUMENT: CONCLUSIONS Of course, none of this is too surprising in an argument from ‘just bounds’, the main purpose of which is to delimit moral territories or spheres, within the confines of which it is permissible for individuals to move unobstructed. Nor is it surprising that, unlike

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Rawls, Locke offers no indication of how free speech actually works; that is, of how individuals can exercise that liberty in order to protect their respective ‘spheres’. One can hardly blame him for he is out to defend toleration—not free speech—and it would be misguided to criticise him for having failed to do what he never set out to do in the first place. In fact, where such matters as thought, discussion, and the pursuit of truth are mentioned by Locke in the Letter—as they occasionally are—it is precisely to dissociate any case there may be for their defence from the Letter’s central argument. The business of laws is not to provide for the truth of opinions’, he writes, ‘but for the safety and security of the commonwealth, and of every particular man’s goods and person’ (ibid.: §60), to which he adds, And so it ought to be; for truth certainly would do well enough, if she were once left to shift for herself. (Ibid.) This suggests an argument which is more along the lines of Milton’s than those of Locke’s own argument for toleration. The fact that Locke is concerned with toleration, not free speech, also helps account for some of his argument’s other features. For example, it is no real surprise that a portrait of moral relations which places toleration in the foreground should lack certain inspiring qualities. Toleration is the virtue of ‘minding only one’s own business’ (Ibid.: §34) and all it requires is a grudging acknowledgement of the other’s existence. Not that Locke is to be criticised on this score either. Sometimes, an inspiring vision of the way things could be is absolutely the last thing one needs from a political argument. (Toleration may be, as Cranston (1991:78) says, ‘a disagreeable subject’, but it is a necessary virtue nonetheless.) My point is only that, had Locke been defending free speech instead, then he might reasonably have been expected to say more on such subjects as—say—the nature of truth and rationality, and less on the importance of keeping oneself to oneself. But he isn’t defending free speech. For a further illustration of the same point, nor is it surprising that Locke should have refused to extend toleration to Catholics and atheists. The former are excluded on the grounds that a church ‘can have no right to be tolerated by the magistrate, which is constituted upon such a bottom, that all those who enter into it, do thereby, ipso facto, deliver themselves up to the service and protection of another prince (Locke 1689: §69); the latter on the

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grounds that ‘Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist’ (ibid.: §70). If Locke’s characterisations of ‘Catholic’ and ‘atheist’ were accurate, these conclusions would flow quite naturally from his characterisation of the commonwealth as ‘a society of men constituted only for the procuring, preserving, and advancing of their own civil interests’ (ibid.: §5). Of course, the same conclusions would have appeared strangely intolerant if it had been Locke’s intention to defend free speech, or, like Mill, the liberty to contribute any opinion whatsoever to an ongoing debate. But—for all the respect his place in the liberal canon attracts—that was not his intention.

10.4 THE CONTRACTUALIST APPROACH: TAKING STOCK

10.4.1 A balance sheet With that, I shall bring my discussion of (what I have been calling) the ‘contractualist’ approach to freedom of speech to a close. (As I pointed out, although Locke’s argument is not itself contractualist, it is certainly a precursor of later contractualisms.) This is the appropriate point at which to take stock of its main weaknesses and strengths. As many of these either run parallel to, or directly contrast with, prominent features of the ‘classic’ defence, i.e. the argument epitomised by Mill’s case for the liberty of thought and discussion, a good way to proceed here would be with a comparison of the two forms of argument. That is why I have used headings which parallel those I used in the Postscript to Part One, where I summarised the classic defence’s virtues and deficiencies. (i) The underlying model To start with, then, recall that the classic defence prioritises a ‘seminar group’ model. This is a strength to the extent that activities which can reasonably be classified as the exercise of free speech really do resemble participation in thought and discussion by rational individuals as construed in terms of the model. It is a weakness to the extent that they do not. In a similar manner, contractualism assumes a picture of the moral world in which it is important for people to remain protected within their respective ‘spheres’. The same is true of its ancestor, Locke’s ‘just

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bounds’ argument. (If you want a name for this, I don’t think it would be too much of a parody to call it ‘the suburban housing estate model’.) This is an accurate picture to the extent that the necessity to share the planet with others, including those with whom you disagree over fundamentals—those with differing ‘conceptions of the good’ —represents a real problem. The argument derives strength from the way it highlights the fact. However, like the classic defence the contractualist argument paints a partial picture. There is a corresponding weakness in the sense that the functions of language are manifold. Its role is not restricted simply to the defence of one’s territory against unwarranted intrusion by one’s neighbours. As for inspiringness or the lack of it, I suppose it is worth remarking that the ‘suburban housing estate’ model, unlike the ‘seminar group’ model, is less than inspiring. But then, that is the point of suburbia. At its best, suburbia is a comfortable place to inhabit. It is a place where one can get along with one’s own life, in peace. However, it is not suburbia’s function to inspire the mind or elevate the soul. (ii) Consequentialism The classic defence is weakened by its consequentialism. Just to remind you, the argument maintains that where individuals are at liberty to engage in thought and discussion, the search for truth is—as a consequence—facilitated. This means that the defence has no argument where the causal relation on which it rests its case does not hold. I mean the alleged causal relation between the liberty, or liberties, it sets out to defend and the increase in knowledge. The argument is weakened because there are many cases in which it is quite clear that the connection is absent. It transpires that the contractualist argument for free speech is similarly weakened by consequentialism. Of course, I do not mean this claim to refer to contractualism as a whole. As a theoretical approach to problems in ethics and political philosophy, contractualism is, at its core, fundamentally anti-consequentialist. All I mean to point out is that contractualism is, apparently, forced to fall back on consequentialist considerations when accounting for the value of free speech (much as it is—no doubt—when trying to elucidate other fundamental freedoms too). To take just one example, in the case of Rawls’s argument for ‘basic liberties’ it is difficult to see what other sorts of consideration his rational choosers would be in a position to consider when selecting those liberties. But, in conclusion, the main trouble with consequentialist arguments is that they are, so to speak, Janus-faced. This is because,

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for any conceivable situation in which activity A has preferred consequence C, there is another conceivable situation in which suppressing A would have the same consequence. If A is the activity you are trying to justify (or if you are trying to justify the liberty to do A), it follows that, for every consequentialist argument there may be in favour of A, there is another consequentialist argument against A. The relevance of this point to contractualism is as follows. Although it is true that there are ways of exercising free speech which help individuals defend their personal moral spaces or ‘spheres’—the use of free speech to influence the decision-making process, for example, as described by Rawls—there are also ways of exercising (what would normally count as) free speech to intimate and subdue individuals. In such cases it is not free speech, but its suppression, which would most serve to protect an individual’s sphere. Not only that, but the demonisation of individuals, the dissemination of gossip and rumour, etc., are daily meat and drink to many newspapers and magazines. With the typical contractualist argument for free speech, you could end up closing down a sizeable proportion of the western press.6 (iii) Relativism Now for a contrast between the classic defence and the contractualist approach to free speech. In Mill’s hands at least, the former is ‘rationalistic’. It assumes that there is an objective truth, ‘out there’ and waiting to be reached, and it privileges logical and scientific modes of enquiry by treating them as the appropriate roads to follow when seeking truth. It is because of this that epistemic relativism threatens to undermine it. Just for example, if truth is a function of linguistic interplay between historically situated individuals—if ‘we should be content to call “true” or “good” whatever is the outcome of free discussion’, as Rorty thinks we should (Rorty 1989:84)—the classic defence is undermined because ‘thought and discussion’ would lose its stated point. (All this has been discussed at some length in chapter six.)7 But, by contrast, contractualism is not at all rationalistic. The content of an idea or an argument can be as crazy as anything. What matters is not that, but its effectiveness in keeping intruders at bay. And of course, the content of conversational interchanges between those who inhabit the same moral and intellectual sphere— between ‘consenting adults’—can be as daft as you like. Therefore a contractualist or ‘just bounds’ argument is unthreatened by epistemic relativism because truth is not the point.

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I suppose this is a weakness. At least, it is to the extent that it underestimates the significance of the relationship between language, truth, and reason. And there is a further—related— weakness too. Because it permits linguistic interchange between consenting adults, however kinky, the contractualist approach to free speech is presented with serious difficulties by value (as opposed to epistemic) relativism. Recall the case of true believer, T.8 T holds beliefs which appear quite irrational to others, but there is no argument which can shake T out of them. In chapter six, I used the example of T to illustrate how irresolvable disagreement can arise between individuals, thanks to their treating quite different standards of evidence as authoritative. But, as I also pointed out, the example can also be used to illustrate a different problem. Suppose that T believes that the members of some group are worthless, that they count for nothing, even that they should be exterminated. (Suppose, if you like, that this despised group consists of people like you.) If there are any, what are the contexts in which T should be allowed to express this belief? The Lockean, or contractualist, answer is that the context is defined by the ‘just bounds’ which define T’s ‘sphere’. But where are the bounds and how do you know when T is safely inside them? For Locke the answer to such questions is fairly unproblematic, for T will be a religious believer who holds that the members of some other sect are not exactly in a state of grace. The bounds will be the bounds of T’s church, and these will quite often be—quite literally —walls. You can easily picture T and his co-religionists crazily, but harmlessly, intoning their curses and imprecations within the confines of their own building. The problem arises if you try to develop something like Locke’s defence of religious toleration into an argument for free speech more generally. Should you allow the members of extremely violent, hate-peddling groups to say what they like, but only when they are privately gathered in a room somewhere so that no one else can hear them? Well, you could do that, but it is not at all obvious that you would then have granted them anything resembling a right to free speech. The alternative is to interpret the notion of a sphere’s boundary or wall metaphorically rather than literally, in this case you will find yourself faced with some fairly serious philosophical difficulties. (It is such difficulties as these that arguments such as Rawls’s are designed to solve, of course; but all I need do here is point out that they exist.)

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10.4.2 The story so far Within philosophy, the contemporary debate over free speech began life as a set of arguments over religious toleration. After the seventeenth century, the argument was transposed, over time, from a theologically defined to a secular context. As a result, the major arguments of our own time—or, at least, the ones I have so far considered—bear traces of their ancestors. As noted, Mill acknowledges his debt by introducing his argument for free speech with an apology. ‘Those to whom nothing I am about to say will be new’, he writes, ‘may, therefore, I hope, excuse me if on a subject which for now three centuries has been so often discussed I venture on one discussion more’ (Mill 1859:1, §15). Rawls is more explicit. He openly points out that ‘the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries’ (Rawls 1993: xxiv). His argument is thereby presented as a contribution to a debate which began life in that period. If the lines of earlier arguments can be discerned, showing through into the later, that is only to be expected. It is also to be expected that an argument designed for one purpose will show weakness and strain when it is adapted for another. For example, and as noted (in chapter seven), some of Mill’s argument’s major weaknesses are traceable to the way he grafts a secular, ‘rationalistic’ or ‘scientific’ view of reason on to the framework of a thesis which initially relied on a conception of truth as moral or religious. Similarly, if it is a weakness of Rawls’s position that he gets an argument for free speech only with the help of some fairly ad hoc contingent assumptions, it is also hard to see how anyone following the broad lines of a case for toleration, such as Locke’s, could have done otherwise. Another result is a certain restrictedness of vision. The arguments I have considered are not so much wrong as partial. So, let me bring this discussion of contractualism to a close by returning to the analogy with which I opened this book. Suppose that you were to travel in a time machine, three hundred years into the future. Suppose that, when you disembarked, you were to find that you were in your home city, the very same geographical location from which you began your trip. Only the date is different. Now suppose that all you had to help you get your bearings was the map with which you set out. Would you be able to find your way about? I think it likely that

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you would, but only in certain parts of the city; after all, most cities bear traces of their past. For example, here in London there are streets which follow the lines of the boundaries of the fields which preceded them. Even with a very old map— even with a map which was as much as three hundred years old— you could be helped to fix your position. However, as you began to move about the city, you would certainly become disorientated and lost.

FURTHER READING I recommend John Locke: A Letter Concerning Toleration in Focus (Horton and Mendus 1991). This contains the letter itself and a number of very interesting essays by some leading Locke scholars. A recent discussion of Locke’s argument is contained in Susan Mendus’s Toleration and the Limits of Liberalism (1989).

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CHAPTER XI

Conclusions and prospects

11.1 CONCLUSIONS I have tried not to write a patronising book; that is, I have not tried to push a line or to get you to see the world from some favourite, more or less idiosyncratic, angle of my own. In any case, I have never subscribed to the view that it is a philosopher’s job to tell other people how they ought to live their lives. (Is there anyone left who does subscribe to that view?) But then, there are unpatronising ways to help someone; ways which do not involve handing out moralistic advice. For example, you can give someone a map and so help that person reach their destination, wherever it might be. Sometimes a map can show whether it is even worth trying to get there in the first place. I should like to think of what I have done in this book by analogy with that. Thus, I have now sketched out two major philosophical theses in some detail: the ‘classic defence’ as formulated by its major proponent, J.S.Mill, and modern contractualism, as developed, in the main, by John Rawls. (Between them, the two dominate this part of the intellectual landscape, so my choice has hardly been arbitrary.) In addition, I have tried to show how each bears on issues surrounding free speech, and how it relates to other theoretical issues of contemporary concern. You now have the map, and I am saying: look. On the one hand, here are the arguments. On the other, here is the world. I leave it to you to judge how closely the two match up. By way of summary, let me give you just one more example of a case where there is a judgement of this type to be made. Take the recurring problem of offensiveness. It frequently happens that some item of published or broadcast material—a film, a poster campaign,

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a TV programme—is objected to on the grounds that it is offensive to some group—women, gays, ‘decent god-fearing citizens’, or whoever. When this happens, the usual reaction to calls for its removal from the public sphere takes the form of protests from other quarters that free speech is under threat, or that we should not give in to ‘political correctness’. I am sure that every reader will be quite familiar with the phenomenon. The question is: is the offensiveness of the material a sufficient reason for suppressing it? To speak quite personally, I sometimes find the claim that such-and-such an item is offensive too preposterous to take seriously. Where this is my initial reaction, and if it is well-founded, then perhaps it suggests that there could be objective criteria for something’s being offensive—rather as there could be criteria for something’s being obscene—and that these criteria pick out features of the item itself. Usually, though, the existence of any such criteria is not the point. What matters is just that some person or group is offended; and, to these cases, I have to say that my own intuitive unreflective reaction tends to be ambivalent. Sometimes, the offensiveness does not seem to me sufficient to justify the suppression. At other times, the fact that, say, women or gays are offended by—say—an advertising campaign seems quite enough to justify its termination (and this is so, even in cases where the offending material doesn’t especially bother me). I report my own reactions here because, just as I am sure that readers will be familiar with the phenomenon I am describing, I am confident that most of you will react in the same ambivalent way. Here, the point is that the existence of this type of problem illustrates the value of understanding how it has been dealt with by a philosophical theory. If you approach it armed with, for example, a knowledge of how Mill defended the liberty of thought and discussion then you have at your disposal a device for sorting things more systematically. Thus, if you see things from Mill’s perspective you will want to say that the more an item—a publication, a broadcast —counts as a genuine contribution to thought and discussion, and so to the discovery of truth, the less reason there is for banning it. By contrast, where there is no such contribution, you will want to say that the offensiveness is purely gratuitous and that— there being no very good countervailing reason for protecting the material—its suppression is justified simply by the fact that offence has been taken. (Mill would agree. He would describe this type of case as an ‘offence against decency’.) (Mill 1859:5 §7).1 Of course,

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there will be some questions to which different philosophical approaches yield different answers. There will be tension and conflict. For a contractualist, offending someone is a matter of stepping outside one’s sphere and invading another’s by, for example, acting to the detriment of the latter’s ‘fundamental, religious, moral, and philosophical interests’. Where it can be shown that this is happening, there is an argument for suppressing material, even if it is making a contribution to thought and discussion.2 So, my first conclusion is that there are many such judgements to be made, and many cases in which it will be appropriate to consider the philosophical basis for them; so many that it would be pointless to continue by enumerating more cases, and impossible to produce an exhaustive list. Let me just add two points. The first is that when all the philosophical arguments have been exhausted it doesn’t follow that all the arguments have been exhausted. For example, there is also what Frederick Schauer has called ‘the argument from governmental incompetence’ (Schauer 1982:86). From this, it follows that there should be strong and clear guidelines for authorities to follow, not because these are logically implied by any philosophical argument, but because those authorities cannot be trusted to follow such argument through. (Politicians usually get it wrong.) The second point is that—although it is, in the end, up to you to judge—what remains unforgivable is resort to the blustering slogan, the substitution of ‘dead dogma’ for real thought. Perhaps this is especially unforgivable when the slogan is taken, out of context, from Mill’s argument. (For example, when it consists in blind repetition of the mantra that all silencing of discussion is an assumption of infallibility.) If philosophy has a point, it must surely be to help you see past that sort of thing. My second conclusion relates to a feature which has become increasingly apparent—at least to me—as the discussion has progressed. It also concerns the relationship between theory and the world, and it is as follows. It would be a mistake to define either ‘an exercise of free speech’ or its antithesis, ‘the suppression of free speech’, too narrowly by, for example, focusing on one very specific type of act. I mean that the publication of a book or a newspaper article, or an appearance in a TV broadcast in order to express your opinion can count as exercises of free speech, but then so can so much more besides. And then again, it can also happen that the publication of a book or a broadcast cannot be counted as a (genuine or full) exercise of free speech. Context makes a difference, and one function of philosophical accounts of these issues

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is to supply a context. So, for example, Mill’s argument categorises actions by their function—that is, according to whether they can be counted as genuine contributions to thought and discussion—and not necessarily by whether they are acts of publication, or whatever. Again, there is the ‘tyranny of the majority’ and there are Marcusean scenarios to consider. In these, what would normally count as exercises of free speech—publication, and so on—lose their normal point through having been performed under certain conditions. (For example, it may be that ‘repressive tolerance’ prevails.)3 To deny the point I am making here would seem to me analogous to the mistake of defining a tool by its shape; for example, by insisting that, in order to qualify as a saw, a tool must have a long straight blade with a handle at one end. (Such a definition would rule out circular-saws, chain-saws, jigsaws, laser-saws, and many yet to be invented saws.)4 Before I return to the point—as I shall in a moment—let me just state my third general conclusion and add a comment to it. The conclusion relates to the fact that it has been possible to question the logical structure of the philosophical theories with which I have been dealing, as well as to the fact that they contain blind-spots, traceable to their ancestry in earlier arguments concerning religious toleration. It is that those arguments are not terrific in all respects. The comment is that, even so, they are the arguments we have, at least for the present.

11.2 PROSPECTS What of the future? On this let me say—first—that I would be most impressed if anyone were to come up with an account of the value of free speech which drew the connection between language and autonomy, and which rested its case firmly on that connection. Let me explain what I mean. I will then say why I would be impressed. To begin with, then, by an ‘autonomous’ individual I mean someone who is the ‘agent’ or ‘author’ or ‘owner’ of his or her ‘own’ actions. The autonomous person is, as the phrase has it, ‘not subject to the will of another’.5 By contrast, ‘heteronomy’ is the state of being controlled— possibly enslaved—by another person. For anyone who ranks individual freedom highly, autonomy has to be a value for the reasons for which slavery and dependency cannot be values.6 To illustrate the point I am making here, let me add that any future argument connecting this value with freedom of speech would have historical precursors. For example,

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there is Pericles. Remember him? It was Pericles who, in his funeral oration, extolled the virtues of Athenian political life, and who said, we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all. (Thucydides 1954:145) For Pericles, the freedom to speak your mind was part of what it meant to be a free, self-governing Athenian citizen. 7 Or take Kant, who describes ‘enlightenment’ as a process of emergence from immaturity and who writes, Thus it is difficult for each separate individual to work his way out of the immaturity which has become almost second nature to him. He has really grown fond of it, and is really incapable for the time being of using his own understanding, because he was never allowed to make the attempt. Dogmas and formulas, those mechanical instruments for rational use (or rather misuse) of his natural endowments, are the ball and chain of his permanent immaturity. And if anyone did throw them off, he would still be uncertain about jumping over even the narrowest of trenches, he would be unaccustomed to free movement of this kind. Thus, only a few, by cultivating their own minds, have succeeded in freeing themselves from immaturity and continuing boldly on their way. (Kant 1970a:54–5) For Kant, the urgent need is, thus, to escape the tyranny of ‘dogmas and formulas’ and to learn to reason as an autonomous individual—to cultivate your own mind—and the way to liberation is through ‘the public use of reason’. He writes: The public use of man’s reason must always be free, and it alone can bring about enlightenment among men. (Ibid.: 55) In more recent times, the most significant attempt to connect freedom of speech (or expression) with the value of individual autonomy is the argument developed by Thomas Scanlon in his

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article ‘A Theory of Freedom of Expression’ (Scanlon 1972). In that piece, Scanlon sets out to defend a ‘Millian Principle’ according to which ‘the powers of a state are limited to those that citizens could recognise while still regarding themselves as equal, autonomous, rational agents’ (ibid.: 215). (Incidentally, notice that this is an attempt to support a ‘Millian’ principle with a roughly Rawlsian argument—something else which tends to confirm my portrait of the contemporary intellectual landscape.) The following passage, in which he outlines what he takes to be ‘our normal views about legal responsibility’, indicates the drift of his reasoning: If I were to say to you, an adult in full possession of your faculties, “What you ought to do is rob a bank”, and you were subsequently to act on this advice, I could not be held legally responsible for your act, nor could my act legitimately be made a separate crime. This remains true if I supplement my advice with a battery of arguments about why banks should be robbed or even about why a certain bank in particular should be robbed and why you in particular are entitled to rob it. It might become false—what I did might legitimately be made a crime—if certain further conditions held: for example, if you were a child, or so weak-minded as to be legally incompetent, and I knew this, or ought to have known it: or if you were my subordinate in some organisation and what I said to you was not advice but an order, backed by the discipline of the group; or if I went on to make further contributions to your act, such as aiding you in preparations or providing you with tools or giving you crucial information about the bank. (Ibid.: 212) Scanlon’s explanation for the differences he outlines is that ‘A person who acts on reasons he has acquired from another’s act of expression acts on what he has come to believe and has judged to be a sufficient basis for action’ (ibid.). Now, I am sure there is something in this, although I am also sure that the particular philosophical construction Scanlon puts on the point is open to criticism.8 However, I shan’t even try to develop an argument against him here, because my purpose is only to give an illustration of what I mean by an

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attempt to ground the value of free speech in the value of individual autonomy. Instead, let me briefly explain why I think this particular move has potential. The main reason is that it promises to do full justice to a feature of language, namely the all-pervasive extent to which it is woven into the texture of human life. As I have pointed out, legs do not have a single function—marching, kicking, dancing, or whatever. Rather, they are an essential prerequisite for many human functions. The same goes for language.9 To appreciate the connection between this and human freedom—and the consequent potential for developing a defence of free speech on its basis—you need only remind yourself that language can be used to tell lies, half-truths, to misportray events in certain ways, and that these are some of the main techniques available for the manipulation of humans by other humans. We are, after all, language-using creatures whose characteristic mode of behaviour is action on the basis of belief. It could be that there is the possibility that there is a technical, philosophical argument which could do justice to such facts, and which is waiting to be developed. On the other hand, it could be that no full, technical argument is needed. Perhaps it is enough just to draw attention to the facts, in which case I have already given you such argument as there is.10,11 That said, two further points remain to be made under the heading ‘prospects’. The first relates to a theme which has recurred throughout this discussion, namely the extent to which the defence of free speech, and the liberal world view with which it is associated, is undermined by certain forms of relativism. Some readers will fear that relativism brings narrow and irrationalistic fundamentalism in its wake. I am less pessimistic, however. To see why, recall my argument that there is no clear ‘either/or’ line dividing relative from absolute values; that, for example, principles which regulate relations between the sexes and define arrangements for child-rearing may not be set in stone—they can vary from culture to culture—but they are by no means as arbitrary as, say, a rule that ties must be worn in the office.12 Such principles are less arbitrary because there have to be some arrangements for these purposes and because the range of variation is, presumably, not limitless. Deep facts of human nature and the human condition place limits on what can happen. This has to be seen in the light of another fact, namely that our world is becoming less and less a place where an individual or a group can establish a presence, each on its own sep-arate patch of

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terrain, and enclose itself within its own sphere. It is becoming increasingly less possible for one group to say to another, ‘You do what you like behind your wall. That’s OK for you. What is OK for us is that we get on with what we like behind ours’. For reasons too obvious to spell out, this is increasingly precluded by changes in our ability to communicate and by a correspondingly increasing need to establish a modus vivendi. The consequent prospect for arguments based on ‘just bounds’ is not good, but perhaps that is not such a bad thing. It means, for example, that the currently prevalent view which seeks explanations and justifications by dividing us into conflicting ‘cultures’—‘Asian values’ for the Asians, ‘Western’ for the Westerners—has a limited shelf-life. Something will be lost here, but something will be gained too. It seems to me that there are hopeful long-run prospects for value systems which prioritise toleration and the willingness to listen to others, if only because it will become increasingly difficult to make a case that such systems are merely one ‘world view’ amongst others. Still, I am no futurologist and I am well-aware that every coin has its other side. On this point, all I can do is hope I’m right. Let me turn instead to my third, and final, observation. This relates to my earlier point that what counts as an exercise of free speech, or an instance of its suppression, is determined by the context in which it is performed and that this context is defined—in part—by philosophical theory (that, for Mill, there has to be ‘thought and discussion’, and so on). 13 It also relates to the difficulty I have experienced in pinning down my subject matter. I embarked on this study of free speech with confidence, but whenever I thought I was about to come across an instance of the phenomenon, it seemed to evaporate before my eyes. Just consider how different my experience would have been had I set out to study —say—democracy. In this case, I could have drawn on the long history of the political institutions which have gone under that name, and the associated political theory which has gone hand-in-hand with that history. In the case of free speech there seems to be nothing comparable. Why should I have experienced such difficulty? I have thought about this question long and hard. I think I have now come up with an answer, so let me give it to you. It relates to the four criteria which I said an argument must satisfy if it is to count as a genuine defence of free speech. In brief paraphrase, these were (i) that it must identify a class of acts and argue for their legal protection; (ii) that they must be speech acts; (iii) that they must treat the right to

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free speech as a public right; (iv) that they must treat it as a component in a wider, liberal, value system. (It would be tedious to set them out formally, and in full, yet again.)14 Now ask, under what historical conditions would anyone think it necessary to formulate an argument which satisfied those criteria? Of course, there has always been the logical space for someone to formulate an argument satisfying all four, but I am asking what would actually motivate someone to do so. Here, I think the particularly relevant items on the list are (iii) and (iv). I find it hard to see why anyone should be motivated to formulate an argument satisfying these criteria—that is, to defend a right to free speech, construed as a public right and as a component of a liberal value system—unless (a) there is a general public which treats personal autonomy, the right to live your own life in your own way, as the norm, and (b) the coercive state is the principal threat to that autonomy. In the absence of the former condition, there would be no good reason for defending free speech as a right whose exercise is publicly available. In the absence of the second, there would be no good reason for portraying it as one of a set of rights (or ‘liberties’) to be protected against interference. If you like, I am suggesting that the situation which characteristically gives rise to a concern for free speech—and to arguments which satisfy all four criteria—is that in which a coercive authority represents a standing threat to the publication of political material addressed to a wider public. Now, those historical conditions did not exist much before Mill’s time, so—if I am right—there you have the explanation for why those arguments I have described as ‘precursors’ of the modern debate are not themselves arguments for free speech. They qualify as precursors because they satisfy some of the criteria, but they don’t satisfy all of them. Thus, although Pericles was certainly extolling the virtues of the freedom to speak, especially the freedom to speak forthrightly in a political context, he was certainly not ‘defending’ any ‘right’ as a modern writer might do. So far as he was concerned, there was nothing which anything needed defending against. Again, although Kant sets out to defend the ‘public use of man’s reason’ he does so on behalf of the intellectual élite, for the use of reason he is thinking of is ‘that use which anyone may make of it as a man of learning addressing the entire reading public’ (1970a:55). What is Enlightenment? is not a defence of the liberal political order. Or take Locke. As we have seen, the argument of his Letter Concerning Toleration (1689) is not an argument for free speech in the modern

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sense. It is, as it claims to be, an argument for toleration between religious sects. There is fertile soil for conjecture here, for we are now moving away from the historical conditions in which Mill wrote. We continue in the expectation of living our lives autonomously and on our own terms. But power relationships have changed. They are more subtle and insidious, and the story of ‘the state versus the individual’—the one standing in an attitude of permanent confrontation towards the other—cannot capture them in all their complexity. I wonder how long it will be before ‘the free speech issue’, as I have been calling it, itself becomes anachronism, as did the earlier debates over religious toleration. I wonder what will replace it and whether it will be adequate.

FURTHER READING The origins of the modern philosophical debate over the nature and value of personal autonomy are usually traced back to Kant’s Groundwork of the Metaphysic of Morals (1948) [1785]. Two comparatively recent full-length treatments of the subject are Lawrence Haworth’s Autonomy: An Essay in Philosophical Psychology and Ethics (1986) and Richard Lindley’s Autonomy (1986). Joseph Raz presents a fully worked out political philosophy which accords a central place to the concept of freedom in The Morality of Freedom (1986). The subject has also been treated fairly extensively in the philosophical journals, and one philosopher who has written a fair amount on the subject is Gerald Dworkin. See, for example, Dworkin (1970). Whether any of these writers gets it right is, of course, another question, and not one I intend to pursue here. Since ‘autonomy’ is a term with a rather technical flavour, perhaps there is no single ‘right’ account of the concept, though— for what it’s worth—some readers may be interested to know that my own view resembles Harry G.Frankfurt’s. For this, see Frankfurt (1971). As I have stated in the text, the relation between the value of autonomy and the value of free speech is discussed by Scanlon (1972 and 1979). For a much more recent discussion see Easton (1995).

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APPENDIX Milton and Mill: a comparison of extracts

In chapter five I claimed that there are parallels between the argument of Milton’s Areopagitica (1644) and that of the second chapter of Mill’s On Liberty (1859). In this appendix I offer support for the claim with evidence in the form of parallel quotations. Areopagitica is reprinted in C.A.Patrides (ed.), John Milton: Selected Prose (Patrides 1974). Page references are to that edition. References to On Liberty are by chapter and paragraph number.

Infallibility …how shall the licencers themselves be confided in, unlesse we can conferr upon them, or they assume to themselves above all others in the Land, the grace of infallibility and uncorruptedness? (Milton: 216)

All silencing of discussion is an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common. (Mill: 2, §3) Suppressing opinion and ‘robbing the human race’ …as good almost kill a Man as kill a good Booke; who kills a Man kills a reasonable creature, God’s Image; but hee who destroys a good Booke kills reason itselfe, kills the image of God, as it were, in the eye. Many a man lives a burden to the Earth; but a good Booke is the

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pretious life-blood of a master spirit, imbalm’d and tresur’d up on purpose to a life beyond life. Tis true, no age can restore a life, whereof there is no great losse; and revolutions of ages doe not oft recover the losse of a rejected truth, for the want of which whole Nations fare the worse. (Milton: 201) Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race—those who dissent from the opinion still more than those who hold it. (Mill, 2, §1)

The ‘pleasant falsehood’ that truth wins out in the end

Revolutions of ages doe not oft recover the losse of a rejected truth. (Milton: 201) But, indeed, the dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. (Mill: 2, §17)

Truth as the outcome of a collision (struggle) with error

It was from out of the rinde of one apple tasted, that the knowledge of good and evill as two twins cleaving together leapt forth into the World. (Milton: 212–13)

I cannot praise a fugitive and cloistered vertue, unexercis’d & unbreath’d, that never sallies out and sees

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her adversary, but slinks out of the race, where that immortal garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is triall, and triall is by what is contrary. (Milton: 213) …though the silenced opinion be an error, it may, and very commonly does, contain a portion of the truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. (Mill: 2, §42)

Reassembling truth piecemeal (the ‘jigsaw puzzle model’) Truth indeed came once into the world with her divine Master, and was a perfect shape most glorious to look on: but when he ascended, and his Apostles after him were laid asleep, then strait arose a wicked race of deceivers, who as that story goes of the Ægyptian Typhon with his conspirators, how they dealt with the good Osiris, took the virgin Truth, hewd her lovely form into a thousand peeces, and scattered them to the four winds. From that time ever since, the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled body of Osiris, went up and down gathering up limb by limb still as they could find them. We have not yet found them all, Lords and Commons, nor ever shall doe, till her Masters second comming; he shall bring together every joynt and member, and shall mould them into an immortal feature of loveliness and perfection. (Milton: 234–5) But there is commoner case…when the conflicting doctrines, instead of being one true and the other false, share the truth between them, and the nonconforming opinion is needed to supply the remainder of the truth of which the received doctrine embodies only a part. Popular opinions, on subjects not palpable to sense, are often true, but seldom or never the whole truth. They are a part of

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the truth, sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjointed from the truths by which they ought to be accompanied and limited. (Mill: 2, §34)

The search for truth culminates in certain knowledge Opinion in good men is but knowledge in the making. (Milton: 237) As mankind improve, the number of doctrines which are no longer disputed or doubted will be constantly on the increase; and the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested. (Mill: 2, §32)

Uncontested truth degenerates into ‘dead dogma’ Well knows he who uses to consider, that our faith and knowledge thrives by exercise, as well as our limbs and complexion. Truth is compar’d in Scripture to a streaming fountain; if her water flow not into a perpetual progression, they sick’n into a muddy pool of conformity and tradition. (Milton: 230–1) However, unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth. (Mill: 2, §21)

Unthinking assent as a form of superstition A man may be a heretick in the truth; and if he beleeve things only because his Pastor sayes so, or the Assembly so determins, without knowing other reason, though his belief be true, yet the very truth he holds becomes his heresie. (Milton: 231)

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There is a class of persons (happily not quite so numerous as formerly) who think it enough if a person assents undoubtingly to what they think true, though he has no knowledge whatever of the grounds of the opinion and could not make a tenable defence of it against the most superficial objections…. Where their influence prevails, they make it nearly impossible for the received opinion to be rejected wisely and considerately, though it may still be rejected rashly and ignorantly. …Assuming that the true opinion abides in the mind, but abides as a prejudice, a belief independent of, and proof against, argument—this is not the way in which truth ought to be held by a rational being. This is not knowing the truth. Truth, thus held, is but one superstition the more, accidentally clinging to the words which enunciate a truth. (Mill: 2, §22) And: I cannot praise a fugitive and cloistered vertue, unexercis’d & unbreath’d. (Milton: 213) This is not the way in which truth ought to be held by a rational being. (Mill: 2, §22)

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PART ONE 1

The reference is to Mill’s On Liberty (1859) chapter 2, paragraph 21. There are so many editions of Mill’s essay available that it would be ridiculous to give page references to just one out of them all. Instead, I have given references by chapter and paragraph. I am grateful to Roger Crisp for this helpful suggestion. CHAPTER I: AN INTRODUCTION TO THE ARGUMENT 1 I have chosen my words advisedly here. It is true, as I say, that Mill would have spent the greater part of his adult life unaware of Darwin’s work, but false that he never became aware of it. The ‘principle of “the survival of the fittest”’ is, thus, discussed in his essay Theism (Mill 1957). On this, Mill comments that, ‘there is something very startling, and prima facie improbable in this hypothetical history of nature’ (ibid.: 31). Even so, he is prepared to concede, ‘this remarkable speculation to whatever fate the progress of discovery may have in store for it’ (ibid.: 32). As for Marx, although Marx is never mentioned by Mill (at least, he is not to the best of my knowledge), Mill was certainly aware of varieties of socialism akin to Marx’s. On this, see his Chapters on Socialism, for example (Mill 1975). 2 I put the point in this way for the benefit of those readers who are aware of the distinction between negative and positive conceptions of freedom. According to the former, freedom is simply the absence of obstructions to action. (There are some philosophers who think that freedom is more than just this, or at least that it is sometimes.) For readers unaware of the distinction, the best source is Sir Isaiah Berlin’s essay, ‘Two Concepts of Liberty’ (Berlin 1969). 3 Perhaps I should point out that I am assuming that the dictatorship is efficient. I suppose it’s possible that under an inefficient dictatorship people could exercise various liberties to such an extent that they really could be said to have a right to free speech. But I suppose it’s equally arguable that, in such a case, you wouldn’t really have a dictatorship anyway.

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4 The criteria are also minimal in the sense that, for all I know, they are not jointly sufficient to establish, in the case of a given argument, that it is a defence of free speech. There could be other criteria I haven’t considered. It doesn’t matter much. For my purposes, all that matters is that the criteria I set out here are ones to which I shall need to refer as my discussion progresses. 5 Here I am making the highly improbable assumption that dictators would not succumb to the temptation to listen in. 6 References to Locke’s Letter Concerning Toleration are by paragraph, as with Mill’s On Liberty. 7 The distinction between ‘participant’, ‘audience’, and ‘bystander’ orientated accounts of freedom of expression is drawn by Scanlon (1979). 8 Here, I am indebted to Brian Barry’s sensible and illuminating definition of ‘public’. See Barry (1965:190ff). 9 I am sure that readers familiar with Mill’s work will appreciate that Mill himself amply satisfies these criteria. Thus: (i) It is pretty obvious that he attaches enormous, if not supreme, importance to individual liberty. Didn’t he write On Liberty? (ii) That he regarded a specific set of negative freedoms as constitutive of the good society is demonstrated by, for example, the passage in which he states that ‘there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest’. In it, Mill lists the freedoms which fall within the sphere. Thus: ‘It comprises, first, the inward domain of consciousness, demanding liberty of conscience in the most comprehensive sense, liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological’; and ‘liberty of tastes and pursuits, of framing the plan of our life to suit our own character, of doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong’ …and so on. Mill adds that, ‘No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified’, (iii) This is grounded in a more general conception of human freedom. As Mill then goes on to add, ‘The only freedom which deserves the name is that of pursuing our own good in our own way’. (For all this see Mill 1859: §§12–13.) That Mill satisfies the criteria in such an unqualified way is, I guess, a good reason for thinking my definition of ‘liberal’ sound. 10 Not that I have anything against series. After all, this book is part of a series. Apart from that, I see that the series in which Bury’s book appears, ‘The Home University Library of Modern Knowledge’, also included Bertrand Russell’s The Problems of Philosophy.

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11 The first edition of Bury’s book was published in 1913. Page references are to the second edition (1951). The latter contains an ‘Epilogue’ by H.J.Blackham, in which Blackham continues the narrative as he thinks Bury would have done had he lived. Blackham’s assessment is pessimistic. He writes: ‘Bury’s prescient recognition in his concluding pages that attempts might be made to put back the clock throws a thin line across the gulf which the cataclysmic events of these forty years have put between his standpoint and ours’ (Bury 1951:202). 12 The eminent classicist H.D.F.Kitto describes the Spartiates—the Spartan ruling class—as having been ‘a minority in their own country’ (especially after the subjugation of Messenia). Kitto goes on to describe the citizen body as ‘a dominant minority holding down and exploiting a vastly more numerous population of active and dangerous serfs’. If the ideal state described by Plato in the Republic is an idealised Sparta, as is sometimes claimed, then—with these proportions—the censorship he advocates looks far more like an exercise in the education of the rulers than it does in the totalitarian control of the mass (Kitto 1951:90, 91). 13 Likewise, Aristotle only discusses censorship in connection with the education of the very young and, even then, only briefly. See Aristotle (1962: Book VII, chapter 17, pp. 297ff.). 14 Scanlon gives the following reference for the passage from Holmes: ‘Dissenting in Abrams v. United States, 250 U.S. 616 (1919)’. I have just borrowed it from Scanlon. 15 The Greek phrase which tends to be treated as ‘minding your own business’ just meant doing what you are best at. ‘Mind your own business!’ does not mean ‘Don’t be nosey!’ CHAPTER II: THE LIBERTY OF THOUGHT AND DISCUSSION 1 I take it that readers will have noticed how closely this passage is paralleled by the narrative of J.B.Bury’s A History of Freedom of Thought (Bury 1951). I disuss this in Chapter One, pp. 16ff. 2 Mill says ‘I choose, by preference, the cases which are least favourable to me, in which the argument against freedom of opinion, both on the score of truth and that of utility, is considered the strongest’. By this, he means opinions which impugn ‘the belief in a God and in a future state, or any of the commonly received doctrines of morality’ (1859:2, §§1, 5– 9). However, it should emerge from my discussion, as it progresses, that Mill’s choice is not quite as unfavourable to his position as he professes. 3 It will be clear to readers who are at all familiar with this area that I am not 100 per cent convinced by John Gray’s approach to the interpretation of Mill. The ‘corn dealer’ example is discussed by Gray on page 105 of his Mill on Liberty: A Defence (Gray 1983). Gray comments that ‘It is

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surely possible to regard this passage as making an appeal to the improbability of autonomous thought in “excited mobs” rather than an appeal to the harm to the interests of corndealers caused by the utterances made in such circumstances’ (ibid.). I agree that the passage can be treated in just that way. (In fact, it’s pretty obvious that it can.) However, Gray’s interpretation rests quite heavily on a close analysis of Mill’s description of the events he imagines and— my reservation—this underplays the tension between Mill’s description and his ‘official’ allegiance to a utilitarian theoretical framework. I am inclined to think that objections of this type can be raised to a great deal of Gray’s ‘revisionary’ account of Mill. (‘Revisionary’ is his word.) Luckily for me, I don’t have to pursue the point here. For an earlier example of the ‘revisionary’ tradition to which Gray acknowledges a debt, see Rees (1960). 4 I express myself hesitantly here because I am aware that Mill’s real view on this point could be more subtle than I have given him credit for. (On this see, for example, Rees 1960 and Gray 1983:48–57.) Still, whatever the correct interpretation of Mill may be here, my main point is unaffected. It is false that the expression of opinion can never cause harm. 5 Examples of real headlines which may well have made a difference are IF KINNOCK WINS TODAY WILL THE LAST PERSON TO LEAVE BRITAIN PLEASE TURN OUT THE LIGHTS, which was carried by the Sun on the day of the 1992 general election (9/4/92). Two days later, after a Conservative victory, the Sun carried IT’S THE SUN WOT WON IT (11/4/92), which may well have been true. The pro-Nazi HURRAH FOR THE BLACKSHIRTS carried by the Daily Mail in January 1934 is still remarked upon by historians. CHAPTER III: A CASE STUDY 1 Shortly before writing this paragraph I was privileged to hear Norman Geras speak on the subject of ‘the contract of mutual indifference’. For Geras, this ‘contract’ is a device for representing a moral attitude, prevalent in the twentieth century. Geras’s surprise at the lack of attention which political philosophers have paid to the Holocaust is on record. He writes, ‘There is, so far as I can see, no obvious reason for the gap, for the relative silence about this vast tragedy, within contemporary AngloAmerican political thought’ (Geras 1995a:115). 2 I have quoted throughout from Singer’s Journal of Applied Philosophy article. However, substantially the same material forms the content of the Appendix to the second edition of Singer’s Practical Ethics. This is entitled, ‘On Being Silenced in Germany’ (Singer 1993:337–59). 3 On Heidegger’s relationship with Nazism, the essential text is Victor Farías’s Heidegger and Nazism (Farías 1989). Farías’s verdict is that,

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4

5

6

7

8 9 10 11

throughout his career as a philosopher, ‘Heidegger always remained faithful to a whole spate of doctrines characteristic of National Socialism’, so much so that ‘A genuine understanding of Heidegger’s thought is impossible if one ignores this fidelity’ (ibid.: 7). I am quoting from the second edition of Practical Ethics (1993), although the same chapter is contained in the first (1979). I should add that not everyone finds Singer’s views on euthanasia so easy to accept. See, for example, Uniacke and McCloskey (1992). I think Jenny Teichman would agree, for she makes a closely related point. ‘Do citizens have a right to try to silence obnoxious propaganda if the state, for whatever reason, fails to do so?’ asks Teichman. She goes on to comment that, ‘If the answer to this is “no” then it looks as if freedom of expression positively excludes the right to say “shut up”, while allowing invited speakers to say whatever they like’ (Teichman 1994:102). Contrary to popular belief, it is likely that Voltaire never said this. According to the Concise Oxford Dictionary of Quotations, the remark is merely attributed to him by S.G.Tallantyre in The Friends of Voltaire (1907), p. 199. Roger Griffin records that, in granting him permission to quote from the Holocaust denial article first published in Spearhead (Day 1987), John Tyndall of the British National Party stressed that it was printed ‘only to maintain free debate on issues on which that kind of debate is not normally these days permitted’ (see Griffin 1995:333). Griffin’s anecdote illustrates how important it is to the neo-fascist Right that they should be able to use the slogan ‘free speech’ in defence of their activities. The quotations are taken from Thomas Laqueur’s review of Serge Klarsfeld’s French Children of the Holocaust (Laqueur 1997; Klarsfeld 1996). I should add here that Scanlon himself uses the example to illustrate a somewhat different point. A version of this objection was first raised against Mill in 1873 by James Fitzjames Stephen. See Stephen (1991:77ff.). The Constitution of the Federal Republic of Germany contains the following statements: Article 5: Everyone shall have the right freely to express and disseminate his opinion by speech, writing, and pictures… Art and science, research and teaching, shall be free. Article 18: Whoever abuses freedom of expression of opinion, in particular freedom of the press (and) freedom of teaching…shall forfeit these basic rights.

It is the latter which enables the German government to suppress Nazi material. (See Finer 1979:195ff.) 12 I say this knowing very well that Singer is, as he points out, himself the child of Austrian—Jewish refugees, and that three of his grandparents

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died in Nazi concentration camps (see Singer 1993:346). My point is that a range of reactions is possible here, and that there seems to be no special reason for privileging Singer’s. 13 In December 1996 it was reported that Boris Becker, the German tennis star, had been forced to leave Germany ‘because of persistent racial harrasment and taunts aimed at his black wife and infant son’ (Guardian, 21/12/96). Such incidents suggest that Germany is not a place where things would continue ‘as normal’ if anti-Nazi legislation was lifted. 14 The quotations are from reviews by Nisha Puri (Indian Post, 2/10/88), D.J.Enright (New York Review of Books, 2/3/89), and Malise Ruthven (Tablet, 3/12/88). My source for this, and much other material relevant to ‘the Rushdie affair’, is Lisa Appignanesi and Sara Maitland’s The Rushdie File (Appignanesi and Maitland 1989). I have found it a great help. CHAPTER IV: TRUTH AND CONSEQUENCES 1 I think of Mill’s first ground as a corollary of the seminar group model. In a seminar, where everything is held open to question for the sake of the pursuit of truth, ‘Do not assume your own infallibility’ has to be a ground rule. Of course, there are independent reasons for objecting to people who assume their own infallibility. Generally speaking, such people are extremely unattractive, anti-social individuals. Still, those are not the reasons Mill gives. 2 I have abridged this a little. In Williams’s original version, it is longer and more detailed and, as I say, there is a reason for this. Also, Williams adds another example, the story of ‘Jim’ who ‘finds himself in the central square of a small South American town. Tied up against the wall are a row of twenty Indians’. Pedro, the soldier in charge (‘a heavy man in a sweat-stained khaki shirt’) gives Jim a choice. Either Jim shoots one Indian himself and the rest go free, or all twenty Indians are shot by the soldiers. What should Jim do? (See Williams 1973:98ff.) 3 This is made clear by, for example, The Principles of Morals and Legislation, Chapter 4, section 5 (Bentham 1987; 87–8). 4 Holding individuals responsible for every consequence of what they do has absurd implications. For example, it means that Hitler’s parents, grandparents, great grandparents, great great grandparents…and so on, were all partly responsible for his influence on history. Any fair-minded interpretation of utilitarianism will only hold people responsible for those consequences of their actions which they can reasonably be expected to have foreseen. I take it that Williams would agree, although the sentence I have actually quoted, according to which there is a ‘distinction between my killing someone, and its coming about because of what I do that someone else kills them’ leaves the matter open. (It was because of something Hitler’s parents did that he existed.)

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5 There are numerous editions of Utilitarianism available. References are by chapter and paragraph number (as with On Liberty). 6 To be fair, I should add that Skillen himself is critical of the attitude he ascribes to other socialists. 7 My use of the phrase ‘possessive individualism’ is, of course, an allusion to C.B.Macpherson’s The Political Philosophy of Possessive Individualism (MacPherson 1962). CHAPTER V: CONSEQUENTIALISM AND THE RIGHT TO FREE SPEECH 1 According to Roger Crisp, Mill treats the no harm principle as necessary but not sufficient to justify interference with the action of another (see Crisp 1997:180). This has to be right, if only because short-term harm sometimes has to be endured for the sake of the long-term good, or at least to avert harm in the long term. Mill’s argument for the liberty of thought and discussion has to be understood as pointing out that the longterm good requires overriding the principle in just this way. 2 What a good writer Mill was! His rhetorical use of a ‘zipper’ argument to make his point here is brilliant. It goes without saying that the stuffy middle classes of Victorian England would not have enjoyed Mill’s comparison between themselves and Muslims, whose ‘aversion to the flesh of the “unclean beast” is…of that peculiar character, resembling an instinctive antipathy’ (Mill 1859:4, §13). 3 Nozick ‘tiptoes around’ the ‘incredibly difficult issues’ which surround the question of when injuring the innocent is justified—if it is justified at all? (Nozick 1974:35). I can’t say I blame him. 4 For Nozick’s account of rights as ‘side-constraints’ on the actions of others, see Nozick (1974), especially chapter three. 5 I think it is accurate enough to describe Mill as a ‘rule utilitarian’, although I am aware that some commentators would prefer to reserve the term for the work of more recent utilitarian philosophers. CHAPTER VI: THE VALUE OF TRUTH 1 I have described this type of material as ‘harmless enough’, but I should qualify that. It looks a lot less harmless if you start to think about what people would, or could, be reading if they weren’t reading Hello! or the contemporary tabloids. In fact, there is no reason at all why a tabloid paper with a working class readership should not, at the same time, present its readers with good, intelligent journalism without patronising them. On this, see especially Pilger (1997). 2 Not that this kind of thing is confined to the tabloids. Readers familiar with Mill’s life will realise that I have resisted the temptation to titillate with prurient

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3

4

5

6 7

8 9

gossip about Mill’s relationship with Harriet Taylor. Believe it or not, it has even been put to me that a serious study of Mill should contain this type of material. For an account of the relationship, see Mill’s Autobiography (1989) [1873]. For a controversial account of Taylor’s influence on On Liberty see Gertrude Himmelfarb’s On Liberty and Liberalism (1974). The remark was made by Ms Anne Widdecombe who, at the time she made it, was a minister in the British Home Office. The ‘political refugee’ to whom she was referring was Mohammed Al Mas’ari (no liberal himself, as it eventually transpired). The British Government, at the insistence of the Saudis, was planning to deport Mr Al Mas’ari to Dominica in the Caribbean. Apparently UK—Saudi trading agreements were at risk. (The quote is from a report in the Guardian, 5 January 1996.) Opinions vary over just how élitist Mill was. For an interpretation of Mill as an élitist, see especially Maurice Cowling’s Mill and Liberalism (Cowling 1963). Cowling argues that ‘On Liberty, contrary to common opinion, was not so much a plea for individual freedom, as a means of ensuring that Christianity would be superseded by that form of liberal, rationalistic utilitarianism which went by the name of the Religion of Humanity’ (Cowling 1963: xiii). For reasons I won’t elaborate—they would be beside the point—I think Cowling’s thesis is highly contentious. On 26 September 1988 The Satanic Verses, a novel by Salman Rushdie, was published in the UK by Viking/Penguin. On 8 November 1988 the book was awarded the Whitbread ‘best novel’ prize, a prestigious literary award. Demonstrations of protest followed, as certain passages in the book are considered offensive and blasphemous by many Muslims. On 4 February 1989, the Ayatollah Khomeini, then ruler of Iran, proclaimed a fatwa, or death sentence, on Salman Rushdie. This was followed, on 15 February, with the declaration that anyone killing Rushdie would receive a reward of £1,500,000. Since then, Rushdie has been in hiding, even though he lives in the UK and the Ayatollah was the ruler of a far-off country, Iran. As I write, I expect that most readers will be familiar with these events, but I have detailed them anyway in case memory fades. Bhabba goes on to write of the need for a ‘political and cultural initiative’ which will loosen the grip of these stereotypes (ibid.). I am well aware that MacIntyre does not believe that ‘traditions’ are completely hermetically sealed. In the closing sections of Whose Justice? Which Rationality? he argues that there can be a ‘conversation between traditions’, with those involved ‘learning to use the idiom of each in order to describe and evaluate the other or others by means of it’ (MacIntyre 1988:398). However, this is insufficient to allay my reservations. If you want a better idea of what I am referring to here, you could do worse than see the movie Fever Pitch (Channel Four Films, 1997). Sartre writes:

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Let us consider this waiter in the café. His movement is quick and forward, a little too precise, a little too rapid. He comes forward to the patrons with a step a little too quick. He bends forward a little too eagerly; his voice, his eyes express an interest a little too solicitous for the order of the customer. Finally, there he returns, trying to imitate in his walk the inflexible stiffness of some kind of automaton while carrying his tray with the recklessness of a tightrope-walker by putting it in a perpetually unstable, perpetually broken equilibrium which he perpetually re-establishes by a light movement of the arm and hand. All his behaviour seems to us a game. He applies himself to chaining his movements as if they were mechanisms, the one regulating the other; his gestures and even his voice seem to be mechanisms; he gives himself the quickness and pitiless rapidity of things. He is playing, he is amusing himself. But what is he playing? We need not watch long before we can explain it. He is playing at being a waiter in a café. (Sartre 1989:101–2)

10 11

12 13

14

15

According to Sartre, it is when the waiter forgets that he is playing a game, that he can transcend his role, that he manifests a ‘pattern of bad faith’. For a persuasive critique of MacIntyre and Sandel, see Gutmann (1985). It should go without saying that Mill’s ‘rationalism’ (as I call it) is not at all equivalent to the position taken by the great rationalist philosophers of the seventeenth century, Descartes, Leibniz, and Spinoza. British readers will be familiar with the regular ‘Thought for the Day’ spot on Radio Four’s Today programme. For an influential account of the relationship between epistemological standards and culture see Peter Winch’s piece on the Azande of Africa, ‘Understanding a Primitive Society’ (Winch 1964). It seems to me that the last, and most radical, of these possibilities is likely to look the more attractive the greater the disparity between the categories with which each description respectively operates. Thus, ‘this is a vast array of atoms and molecules’, ‘this is a piece of canvas, different areas of which are coloured differently’, and ‘this is a painting by Van Gogh called Sunflowers’ all refer to the same entity, but it is hard to see what rules of translation there could be to permit one description to be reduced to any of the others. (It is equally hard to see what would be gained by doing so, in any case.) Philosophers reading this will know that one of the most intractable challenges to the idea that one set of descriptions can be reduced to another is presented by the mind-body problem. If there were no independent historical facts—that is, if historical ‘truth’ were simply a function of the descriptions historians happen to find acceptable at any given time—it would seem to follow that the past can be changed by events in the present or the future. I find this a bizarre, and unacceptable, conclusion.

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16 There is a further consideration that Rorty’s work is extremely readable and that English speaking readers are more likely to be familiar with it. 17 In Locke’s case, the conception of person autonomy is encapsulated by his idea that we each of us have a property in our own ‘persons’. For Mill, it is expressed by—for example—his claim that the individual is bounded by a ‘sphere of action’ whose boundaries neither the state nor another person may transgress. In Rawls’s case, it is captured by his claim that each person has a ‘rational plan of life which he or she will be concerned to fulfil’. 18 If the attitudes which writers on the subject tend to strike are anything to go by, the relativism/anti-relativism argument is set to become one of the great over-inflated non-issues of the next few years. On this, Dawkins and Rorty present an instructive contrast. To take Dawkins first, in a passage immediately preceding the one I discussed earlier— the one beginning, ‘Show me a cultural relativist and I’ll show you a hypocrite’ —Dawkins relates the anecdote of how he was once ‘provoked by an anthropologist colleague into putting the point starkly, as follows: ‘Suppose there is a tribe…who believe that the moon is an old calabash tossed into the sky, hanging only just out of reach above the treetops. Do you really claim that our scientific truth— that the moon is about a quarter of a million miles away and a quarter the diameter of the Earth—is no more true than the tribe’s calabash?’ (Dawkins 1995:31). The anthropologist is reported to have replied, ‘Yes’.(Collapse of stout party?) With this story, Dawkins invokes a world in which scientists of steely determination purposively stride the corridors of the academy, their sole aim being to make things ‘work’. In this scenario they are, sadly, frequently frustrated in their endeavours by shadowy and misguided ‘relativists’ who lurk in the shadows. Some are ‘anthropologist colleagues’, and all are ‘hypocrites’. Worse, some are ‘literary critics’. But do not fear. They can soon be sent packing with the swift and penetrating observation that the moon is not a pot in the sky, and that there you have the explanation for why aeroplanes don’t go crashing into it. If we turn to Rorty, we get a picture which is the negative image of Dawkins’s. Rorty’s hero is not a scientist but—guess who—a literary figure, ‘the strong poet’, no less (Rorty 1989:53ff). For Rorty it is, moreover, misguided to ‘take science as the paradigmatic human activity’ or to ‘identify with its cause’ (ibid.: 3) (something Dawkins clearly does). In Rorty’s view to do so is to waste one’s time myopically pursuing an antiquated ‘Enlightenment Project’ which, the way Rorty describes it, sounds rather like a rusty old toy railway locomotive, with the scientist cast as a sadly over-aged adolescent struggling—ineptly and without success—to get it to work. You would never guess that both writers actually agree that scientists invent descriptions of the universe which ‘work’ (Dawkins) in the sense that they are ‘useful for purposes of predicting and controlling what happens’ (Rorty) (Dawkins 1995:32; Rorty 1989:4). For a refreshing and amusing attempt to breathe sense into the debate see Jonathan Rée, ‘This Jellyfish can Sting’ (Rée 1997).

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19 It will be clear that I am unsympathetic towards Stanley Fish’s (fashionably postmodernist) attitude to free speech (see Fish 1994). According to Fish, ‘“Free Speech” is just the name we give to verbal behaviour that serves the substantive agendas we wish to advance; and we give our preferred verbal behaviours that name when we can, because in the rhetoric of American life, the label “free speech” is the one you want your favourites to wear’ (ibid.: 102). 20 For the purposes of this argument, I haven’t felt it necessary to fill-in the concept of culture. 21 My source for this is Beattie (1984). In his turn, Beattie refers the reader to Sperber (1975). CHAPTER VII: AREOPAGITICA’S AFTERMATH 1 C.A.Patrides writes, The title is an allusion to the Areopagus near the Acropolis at Athens, the seat of the Council of State which the legislators Draco and Solon later reorganised as a judicial tribunal (seventh—sixth centuries BC). Later still, probably about 355 BC, the Athenian orator Isocrates pleaded for a resuscitation of the tribunal in his Areopagiticus. (Patrides 1974:196) 2 Page references are to the Patrides (1974) edition. I would like to have given references to Milton by paragraph, as I do with Mill and Locke. This is because I think ‘Milton (1974)’ looks silly when everyone knows that Milton was a seventeenth-century writer. Unfortunately, it proved impossible because Milton seems to have had much the same attitude to paragraphs as he did to Catholics. 3 In these paragraphs I simply rehearse my earlier comments on Mill’s version of the infallibility claim. For these, see Chapter Three, pp. 43ff. 4 Here, perhaps, I should reiterate that by ‘rationalism’ I do not mean the seventeenth-century rationalism exemplified in the work of Descartes, Leibniz, and Spinoza. 5 For Plato’s critique of democracy see the Republic, Part IX, section 6ff. (Plato 1987:373ff). 6 So far as I am aware Noam Chomsky still finds it very difficult to get his work, especially his journalism, published in his own country. (Chomsky is, after all, one of the USA’s leading intellectuals.) Also, it was reported recently that Ken Loach, the prizewinning British film director, has found it absolutely impossible to get his film about Nicaragua, Carla’s Song, shown anywhere in the United States. In neither of these cases is a power of censorship exercised by state officials, but the effect is the same.

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7 I haven’t given details of my sources in the main body of the text. This is partly because the cases were widely reported at the time—so there would be no real point in citing a specific source—and it is partly because, from my argument’s point of view, it isn’t the specific cases which matter so much as the fact that they typify situations which are likely to recur. I will just say the following: the information that racist and fascist material is disseminated over the net is drawn from an article by Roger Eatwell (‘Pure, White, and Deadly’, Guardian 5/8/95). Bill Gates’s bland remark is cited from his Guardian column (‘The Bill Gates Column’, Guardian 14/9/95). 8 The McLibel verdict was announced on 19 June 1997. The decision was (for the most part) in favour of McDonald’s, although there is general agreement that their victory was Pyrrhic. The case was disastrous for the company’s public image and, as the Guardian reported, ‘the judge upheld several important charges made by the campaigners against the company, including cruelty to animals used in its food products and exploiting children in its advertising campaigns’ (Guardian 20/7/97). For an account of the case, see Vidal (1997). The allegation that Michael Foot had been a KGB spy was published by the Sunday Times on 19 February 1995. The paper subsequently apologised but Foot went ahead and won a libel action against them on 7 June 1995. I have already referred to the Mas’ari case (see above, Chapter Six, p. 89 and p. 236n3). 9 The ‘anti-semitic’ lecturer to whom the Edinburgh students objected was Dr Yasim Dutton. (My source is ‘Campus fears over “anti-semitic” lecturer’, Observer, 17 March 1996.) The row over Christopher Brand’s book erupted in April 1996. In an interview for The Times Higher Education Supplement Brand is reported as having commented that ‘the anti-racist movement is coming to the end of the road, having done nothing for blacks and race relations, and the next menace to be tackled is feminism’. Brand is reported to have added, ‘Of course, no two feminists agree with one another, although we expect this from girls, don’t we?’ (THES, 26 April 1996). The row over the ‘Dracula’ poster erupted in August 1996. (The election was eventually held on 1 May 1997.) Michael Howard’s decision to block Europe’s antiracism legislation was reported by the Independent on 25 November 1996 (‘Howard opposed racism law “to protect Rushdie”’). 10 The psychologist Graham Richards argues persuasively that ‘the race differences position is scientifically dead’ (‘Arsenic and old race’, Observer, 5 May 1996). Richards refers the reader to Tucker (1994). POSTSCRIPT TO PART ONE: TAKING STOCK OF THE CLASSIC DEFENCE 1 For my discussion of the ‘Speakers’ Corner’ and ‘Airport Lounge’ effects, see pages 133–4. 2 It should go without saying that I mean to place a wide construction on ‘language’ here. I intend it to include not only speech and writing—

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although these are, of course, central—but activities such as sending a message by morse code or attempting to convey a proposition to the public by means of a demonstration. 3 I am unsure because it isn’t clear just how closely Kant wants to identify the freedom to make public use of one’s reason with a liberal value system. (Thus, he fails to satisfy one of the criteria for something’s being a defence of free speech outlined in Chapter One, pp. 10ff.) It is true that, in The Metaphysical Elements of Right, he outlines a system which is, in many respects, liberal. For example, he argues for the vote. However, nothing resembling a right to free speech is explicitly mentioned by him, although it could—I suppose—be implicit in such formulations as, ‘Right is…the sum total of those conditions within which the will of one person can be reconciled with the will of another in accordance with a universal law of freedom’, or his claim that, under a ‘patriotic government’, the state ‘treats its subjects…as citizens of the state, i.e. in accordance with laws guaranteeing their own independence’ (Kant 1970c: 133 and 141). In What is Enlightenment? itself Kant declares himself happy with the status quo under Frederick the Great, of whom Kant writes that, ‘only a ruler who is himself enlightened and has no fear of phantoms, yet who likewise has at hand a well-disciplined and numerous army to guarantee public security, may say what no republic would dare to say: Argue as much as you like and about whatever you like, but obey!’ (1970a: 59). Mill would never have expressed such deference to an authority. 4 See Hume (1953a). 5 For all this, see Chapter One, pp. 16ff. PART TWO 1

Since I first drafted this the European Declaration of Human Rights has been incorporated into British law. However, it remains true that the UK has no written constitution. CHAPTER VIII: CONTRACT AND CONVENTION 1 See above, pp. 15ff. 2 Hobbes argues that there is an obligation to obey the commands of an all-powerful sovereign. By contrast, Locke holds that it is a fundamental article of natural law that we have natural rights, most importantly to life, liberty, and property. Individuals and political authorities are obliged to respect these in others. According to Rousseau, there is an obligation to obey the law, provided that it has been passed by the general assembly of a genuinely legitimate state, such as the one he describes in The Social

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3 4

5 6

Contract. I am sure that most readers will be familiar with these differences. The most influential recent account of how understanding promising as a practise can account for the obligation to keep promises is Searle (1969). On (what I believe to be) the most natural interpretation, it is Hobbes’s view that all obligations derive from the original contract. Some commentators— notably Howard Warrender—would disagree. Still, it would be highly tangential to my main subject to dwell on that argument here. Readers interested in the debate would do well to consult J.W.N.Watkins’s lively and readable Hobbes’s System of Ideas (Watkins 1965). The relevant text is Locke’s Second Treatise, in Locke (1988) [1690)]. The famous passage runs as follows. I quote it in full because I think it demonstrates just how much importance Hobbes attaches to the role of (enforceable) contracts in facilitating the reliability of expectations. Whatsoever therefore is consequent to a time of Warre, where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withall. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short. (Hobbes 1985:186)

7 There are points in his argument at which Rawls actually pictures his choosers as participants in a constitutional convention (see especially Rawls 1972:195ff.). However, the most telling reason for treating Rawls lies in his acknowledgement of a debt to Kant as, for example, when he writes, ‘My aim is to present a conception of justice which generalises and carries to a higher level of abstraction the familiar theory of the social contract as found in say, Locke, Rousseau, and Kant’ (ibid.: 11). If Rawls were a literal contractualist, the reference to Kant would be incomprehensible. I think it’s worth quoting Kant on the subject of the social contract at some length here. Thus: This, then, is an original contract by means of which a civil and thus completely lawful constitution and commonwealth can alone be established. But we need by no means assume that this contract (contractus originarius or pactum sociale), based on a coalition of the wills of all private individuals in a nation to form a common, public will for the purposes of rightful legislation,

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actually exists as a fact, for it cannot possibly be so. Such an assumption would mean that we would first have to prove from history that some nation, whose rights and obligations have been passed down to us, did in fact perform such an act, and handed down some authentic record or legal instrument, orally or in writing, before we could regard ourselves as bound by a preexisting civil constitution. It is, in fact, merely an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject, in so far as he can claim citizenship, as if he had consented within the general will. (Kant 1970:79) 8 It has been put to me that my criticism of Nozick misses the mark here on the grounds that he is a ‘natural rights libertarian’ and not a ‘contractarian libertarian’. However, the point is that the contract is the most characteristic and frequently used method for transferring Nozickean rights from one individual to another. This is especially true of the institution Nozick is most concerned to defend, namely the free market. For these reasons, I think my point is fair enough. 9 The point is made by writers as diverse as Alasdair MacIntyre and G.A.Cohen. See Macintyre (1988:251ff.) and Cohen (1995:73ff.). 10 It seems to me that Nozick is ambiguous. For all his insistence that ‘from a just situation a situation could have arisen via justice-preserving means does not suffice to show its justice’ (Nozick 1974:151), there are features of his argument which are consistent with this view. For example, early in his discussion, when dealing with ‘State of Nature theory’ in general terms, he states that ‘A theory of a state of nature which begins with fundamental general descriptions…and goes on to describe how a state would arise from that state of nature will serve our explanatory purposes, even if no actual state ever arose that way’ (ibid.: 7). Nozick is right to think that the imaginary and hypothetical can play a useful role in evaluating the state, so it seems reasonable to ask why it can’t play a role in the evaluation of an actual property distribution. More to the point, shortly after stressing that only transfers which have actually taken place count, Nozick goes on to discuss a ‘principle of rectification’. This is supposed to rectify past injustices where this has ‘shaped present holdings in various ways’ (ibid.: 1974:152). To me, this looks exactly like an argument for effecting a distribution which could have arisen in a just way, even though it didn’t. 11 See above, pp. 74ff. 12 For all this, see above, pp. 113ff. 13 For my earlier discussion of Sandel, see above, pp. 92ff. 14 See above, pp. 114–15. 15 See below, especially pp. 183ff. and pp. 190ff.

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16 For the full statement of his position, see Kant (1948). 17 See above, pp. 74ff. 18 Rousseau describes ‘the savage’ as ‘Solitary, idle, and always close to danger’ (Rousseau 1984:86). CHAPTER IX: FROM THE CONTRACT TO FREE SPEECH? 1 In its initial formulation, Rawls’s first principle of justice states that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’ (Rawls 1972:60). Formulations of the principle have become increasingly complex as Rawls has developed his philosophy. However, that is not a point which need detain us here. 2 The other likelihood, that you will be prepared to make ‘trade-offs’ where these are to your perceived advantage, is taken care of by the first part of Rawls’s ‘difference principle’. According to this, ‘social and economic inequalities are to be arranged so that they are…reasonably expected to be to everyone’s advantage’ (Rawls 1972:60). Here too I cite Rawls’s ‘first statement’ of his principle. 3 On the ‘principle of equal liberty’ Rawls comments that, ‘This idea which arose historically with religious toleration can be extended to other instances (Rawls 1972:220). 4 ‘Men’s’? If Rawls had been writing A Theory of Justice only a few years later, I am sure his terminology would have been more gender-sensitive. 5 I suppose they might select the right to vote for some other reason. For example, it could be that they choose it because they think it gives them the best chance of having their fundamental interests protected. But then they would be gambling with their fundamental interests, and the argument would not parallel Rawls’s for liberty of conscience. 6 If policy was determined by lot—with a description of each alternative written down and drawn, at random, from a hat—it really would be true that each individual had an equal chance of seeing his or her preferences reflected in the outcome. However, my guess is that Dahl would resist the introduction of such a system. 7 It is Mill’s view that ‘concern of government’ is ‘to increase to the utmost the pleasures, and diminish to the utmost the pains, which men derive from one another’. A little later he adds that ‘the end to be obtained through government as the means is to make that distribution of the scanty materials of happiness which would insure the greatest sum of it in the members of the community taken altogether, preventing every individual or combination of individuals from interfering with that distribution or making any man to have less than his share’ James Mill (1955:48–9). 8 In Dahl’s opinion the vote is only one out of a number of devices for making oneself ‘heard’ and a rather clumsy one at that. He argues that although

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9

10 11

12

13 14 15

‘elections are a crucial device for controlling leaders’ they are ‘quite ineffective as indicators of majority preference’ (Dahl 1956:131). In fact, he goes so far as to argue that ‘on specific policy the majority rarely rules’ (ibid.: 124). The story of the Völkischer Beobachter and its role in the early years of the Nazi movement is told by Alan Bullock in Hitler: A Study in Tyranny. See Bullock (1962), especially chapter two. Bullock translates Völkischer Beobachter as ‘Racist Observer’, which is probably no more inaccurate than the anodyne ‘Peoples’ Observer’. See above, pp. 115–16ff. It could be worth noting that what goes for religion here also goes for sex, and that Rawls is continuing a liberal tradition in this respect too. As with religious conviction, so the freedom to express your sexuality can be of great importance to you. (Both can be an integral part of your identity.) But it can sometimes happen that others do not share your sexual preferences, or even want to tolerate them, in which case— just as with your religious activities—all you can offer as a reason why your sexual activities should be tolerated is ‘because it is of great importance to me’. The question is whether this type of argument can be generalised to much else other than religion and sex. N.B. My point here is not the same as Wittgenstein’s, that different words can have very different ‘uses’. Wittgenstein is specifically concerned with meaning, whereas I am remarking on the fundamental importance of language to human life. See Wittgenstein (1953). See above, pp. 160ff. and pp. 165ff. The relevant texts are Dworkin (1970 and Kant (1948). Scanlon writes that ‘Moral argument of more or less the kind we have been familiar with may remain as the only form of justification in ethics. But whether or not it leads to revision in our modes of justification, what a good philosophical theory should do is give us a clearer understanding of what the best forms of moral argument amount to and what kind of truth it is that they can be a way of arriving at’ (Scanlon 1982:107; my emphasis). He adds that ‘Much the same can be said…about the contribution which philosophy of mathematics can make to our confidence in particular mathematical judgements and particular forms of mathematical reasoning’ (ibid.). CHAPTER X: CONCERNING TOLERATION

1 References to the Letter are by paragraph number. 2 This roughly parallels an argument in the Second Treatise according to which God has never, ‘by any manifest Declaration of his Will’, conferred on anyone ‘an undoubted Right to Dominion and Sovereignty’ (Locke 1988:269). 3 Related points are made by Jeremy Waldron. See Waldron (1991). 4 See above, pp. 185ff.

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5 The familiar phrase was first used in the Wolfenden report. This paved the way for the legalisation of homosexuality and prostitution in the UK. Given the general tendency of Locke’s argument, it is unsurprising that the phrase should apply with equal aptness to sexual and to ecclesiastical activity. 6 Here is yet another depressing case to add to those I have already considered. I have borrowed it from Robert Amdur. Consider, for example, the question of whether Tom Watson was responsible for the lynching of Leo Frank. Frank was a northern Jewish industrialist accused (and eventually convicted) of the brutal murder of a fourteen year old Atlanta factory girl. Watson was a major figure in Georgia politics whose weekly newspaper The Jeffersonian provided thousands of rural and small town Georgian residents ‘their only contact with the outside world’. Over a period of fifteen months, beginning in the Spring of 1914, Watson printed literally hundreds of pages about the man he routinely referred to as ‘this filthy perverted Jew of New York’. His editorials and news stories contained rumours about grand conspiracies to subvert the local judicial system, outright falsehoods about Frank and his supporters, and endless amounts of inflammatory rhetoric. Ultimately, according to C.Vann Woodward, they also contained ‘threats of lynching, half-veiled or unveiled’. (Amdur 1980:295–6; in his turn, Amdur refers the reader to Dinnerstein 1968) There are—of course—parallels between this and Mill’s ‘corn dealer’ example, and, like Mill’s, we would only be justified in treating it as an isolated exception to a rule which generally holds if the phenomena described were rare. However, I do not believe they are. Amdur may have described an example which is extreme in some ways, but—as I say—demonisation of individuals and the dissemination of gossip are in many ways the norm. 7 See above, pp. 104ff. 8 See above, pp. 93ff. CHAPTER XI: CONCLUSIONS AND PROSPECTS 1 In the final chapter of On Liberty Mill writes that there are ‘offences against decency’ and that these, if done publicly, are a violation of good manners, and coming thus within the category of offences against others, may rightly be prohibited (1859:5, §7). Mill has often been criticised on the grounds that this claim is inconsistent with his central libertarian position. For example, Jonathan Wolff argues that ‘it is hard to see how he can render this consistent with his other views: indeed, he appears to make no serious attempt to do so’ (Wolff 1996: 140). I am still inclined

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to share Wolff’s view, but I wonder if, here, there isn’t the germ of a defence of Mill against the objection. Such a defence would be founded on a definition of an ‘offence against decency’ as an action which is just gratuitously offensive and for which there is nothing else to be said. Such considerations obviously apply to the case of the (supposed) right to publish pornographic material. For a recent attempt to show that the latter must fall outside the confines of any free speech principle, see Susan Easton’s ‘Autonomy and the Free Speech Principle’ (1995). Easton writes as a feminist. For a contrasting feminist perspective, see Assiter and Avedon (1993). 2 I won’t inquire whether one criterion cancels the other out, or if it does, in what direction—the direction of toleration or of suppression. 3 See above, pp. 130ff. 4 I think that this is the mistake made by the ‘libertarian’ argument that the free market respects free speech. Consider the following passages from Milton Friedman’s Capitalism and Freedom: In a capitalist society, it is only necessary to convince a few wealthy people to get funds to launch any idea, however strange, and there are many such persons, many independent foci of support. And, indeed, it is not even necessary to persuade people or financial institutions with available funds of the soundness of the idea to be propagated. It is only necessary to persuade them that the propagation can finally be successful; that the newspaper or magazine or book or other venture will be profitable. (Friedman 1962:17) And a little later: In a free market society, it is enough to have the funds. The suppliers of paper are as willing to sell it to the Daily Worker as to the Wall Street Journal. In a socialist society it would not be enough to have the funds. (Ibid.: 18) It is supposed to follow that capitalism facilitates political liberty, in the form of the ‘freedom to advocate unpopular causes’ in a way socialism does not. But this supposes that the exercise of a significant liberty—such as free speech—is equivalent (‘reducible to’) a set of more specific freedoms (from obstruction to do specific actions); the freedom to hire a printing press is an example, as are the freedoms to persuade someone to finance your venture and to ‘advocate’ your ‘unpopular cause’. It also ignores the wider context within which such freedoms are exercised. For example, it ignores the way in which changes in power relationships can change the significance of what you do when you advocate your unpopular cause. 5 The phrase is Hayek’s. See for example Hayek (1960), p. 12ff.

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6 Easton (1995) is a recent attempt to link freedom of speech with the value of autonomy. (By the way, I don’t like the word ‘autonomy’. It’s too much of a philosopher’s term of art for my taste. However, in sticking to it, I’m following established usage.) 7 Of course, certain Greek institutions meant that it was an asset if you were able to speak fluently and well in public. You may well have needed to defend your legal case in the assembly, for example. I’m not forgetting, either, that Pericles was celebrating the features of citizenship, and that there were women, slaves, and others in Greek society to whom the rights of citizenship did not extend. 8 Amdur (1980) is a critique of Scanlon’s piece. 9 See above, pp. 189–90. 10 Many readers will be wary here because they will tend to think of an account of freedom which stresses individual self-government or personal autonomy as covertly resting on a suspect ‘positive’ interpretation of freedom. However, I think you can develop such an account while avoiding the risks endemic in the positive conception. In fact, I have a worked-out view as to how this can be done but, in published work, I have only managed to allude to it in passing. As a future project, I hope to write a paper in which I develop the argument in full. 11 Sissela Bok’s two books, Lying (1978) and Secrets (1982) seem to me to be an attempt to argue for freedom and openness, not with a technical philosophical argument but with an impressionistic picture of what the world would be like in their absence. 12 See above, pp. 114–15. 13 See above, pp. 9ff. 14 If you want to, see above, pp. 10ff.

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Index

Airport Lounge Effect 133–4, 142, 240n1 Al Mas’ari, Mohammed 138, 236n3 Amnesty International 51 anti-consequentialist argument from rights 71–80 arbitrariness, charge of 88–9 Areopagus 239n1 Aristotle 6, 231n Arsenal 92, 93 Athenian way of life 18–19, 218, 247n7; Pericles on 18–9, 218, 247n7 Auschwitz 40–2, 42–3 Auschwitz Lie, The 40, 42–3 autonomy: criteria for something’s being a genuine defence of free speech and 221; Kant on 218; language and 217; Locke on 237n17; Scanlon on 219 Barry, Brian 196–7 Becker, Boris 233n13 Bentham, Jeremy 58 Berlin, Isaiah 86–7, 229n2 Blair, Tony 139 Blackham, H.J. 230n11 Brand, Christopher 139, 140, 240n9 Bok, Sissela 240n9 British National Party 40, 233n7 Bury, J.B.: approach to the history of freedom of thought 17–88, 144, 146; on Christianity 17–18, on the essentially private character of thought 12–13,

influence of Mill on 18, 144, 230n10, 231n1 ‘cat-feeding’ example 156–7 Chicago Bulls 92 Chomsky, Noam 239n6 Christianity: J.B.Bury on 17–18; Victorian Mill on 2 Christophersen, Thiess 50; The Auschwitz Lie 40–1, 42–3; and the Saatchi and Saatchi poster 51 ‘classic defence’ of free speech Part One passim; Mill’s argument as the classic statement of 1, 33–4; origins of in debates over religious toleration Chapter Six passim, 146–7, 176; prioritises the liberty of thought and discussion 24–6; taking stock of 142–7; see also liberty of thought and discussion; Mill, John Stuart Cohen, G.A. 243n9 ‘collision’ of opinions as a precondition for the discovery of truth 4, 53, 68, 225–6 ‘communications revolution’ 81, 141 communitarianism 84 consequentialism 5, Chapter Four passim; and the ‘anticonsequentialist consensus’ 54, 55–6; and contractualism 209– 10; and the ‘good in itself’ 83; in Mill’s argument for the

258

Index

liberty of thought and discussion and in utilitarianism generally 61, 143; and the objection from integrity 56–9; and the objection from negative responsibility 59–61; and rights 54; and the right to free speechChapter Five passim; and utilitarianism 55–6 Constitution of the Federal Republic of Germany 233n11 contractualism, 149, Chapter Eight passim; and consequentialism 209–10; and epistemic relativism 210; Hume on 159– 60; and rights 170–2; and the right to free speech 170–2, Chapter Nine passim; since 1972 194–7; taking stock of 208–11; traditional terminology of 172–3; and value relativism 165–70, 211; see also conventionalist contractualism; literal contractualism conventionalist contractualism: defined 160; and Rawls’s argument 161, 162–3; and representation 161, 166ff. context and free speech 14; and the liberty of thought and discussion 27, 170 ‘corn dealer’ example 29–32, 64 Cowling, Maurice 236n3 Crisp, Roger 235n1 cultural diversity 84, 169 cultural relativism 99–100, 113–4 Dahl, R.A. 180, 182, 244n8 Daily Mail 232n5 Daily Star 85 Darwin, Charles 3, 229n Dawkins, Richard 99–102, 106, 238n18 ‘dead dogma’ argument 2, 51, 54, 124–5, 145, 216 defensive posture: and liberty of conscience 187, 202; and religious toleration 205

democracy: and free speech 177– 85; and liberty of conscience 175–6; and Newtonian ‘input—output’ metaphor 179–80, 181, 182; and the principle of equal participation 177ff., 182ff.; see also right to vote; vote/voting democratic process see democracy Derrida, Jacques 107 Descartes, René 48–9, 236n11, 239n4 Dutton, Yasim 240n9 Dworkin, Ronald 168, 192, 245n14 Eatwell, Roger 239n7 Enlightenment Project 145 epistemic relativism 93–6, 113–4, 144; and contractualism 210; and different senses of ‘work’ 100– 3; and ironism 104ff; Rorty on 104–112; and scientific method 97–104 ethical relativism see value relativism European Declaration of Human Rights 240n1 euthanasia: Hitler and 36–7; Singer on 36–7, 50, 232n4, 233n12 evolution, theory of 49, 128 Fever Pitch 236n8 First Amendment see United States constitution Fish, Stanley 238n19 Foot, Michael 138, 240n8 Foucault, Michel 107 Franco, Francisco 46 Frank, Leo 245n6 Frederick the Great of Prussia 240n3 ‘free market in ideas’ 68–9 free speech: as a ‘basic liberty’ 174–7; and contractualism Chapter Nine passim; four criteria for an argument’s being a genuine defence of 10ff., 152, 221–2, 230n9; and ‘freedom of

259

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expression’ 8; and liberty of conscience 185–8, 201–6; more than the simple freedom to speak 9, 10ff., 15, 26; Nozick and 78–80; one-sidedness of major defences 104; Rawls on Chapter Nine passim; as a right 11, 78–80, 164, 170–2, Chapter Five passim; an ‘umbrella’ term 8, 24 ‘free speech booth’ example 11–12, 14, 15 ‘freedom of expression’ see free speech Friedman, Milton 247n4 fundamentalism 84, 95, 139 ‘garbage in—garbage out’ 96 Gates, Bill 137, 239n7 Geras, Norman 232n1 Goering, Hermann 112 ‘global village’ 82, 137 Gray, John 231n3, 232n4; on the anti-consequentialist consensus 55–6 ‘great thinkers’ approach to political philosophy 16ff., 146 Griffin, Roger 51, 233n7 Haiman, Franklyn S. 63–4, 65 happiness 83, 89, 90; and truth 86– 7 Hare, R.M. 36 Hart, H.L.A. 171–2, 232n Hayek, F.A. 247n5 headline, power of 31, 232n5 Heidegger, Martin 36, 232n3 Heliogabolous 88 Hello! magazine 85 Himmelfarb, Gertrude 69, 86–8, 235n Hitler, Adolf 36–7, 138, 234n4, 244n9 Hobbes, Thomas 6, 240n2, 241n4, 242n6, 242n7 Holmes, Oliver Wendell 22 Holocaust 35, 46, 183, 232n1

‘Holocaust denial’ literature 6, 40– 9, 50, 66, 140, 142, 233n7; and Descartes’ ‘evil genius’ hypothesis 48–99, 122; illegal in Germany and Austria 47; and the infallibility argument 43–9, 122; and two levels of belief concerning the suppression of opinion 47 Howard, Michael 139 Hume, David 145; on ‘the Original Contract’ 159–60 ‘infallibility’ argument 4, 54, 121– 4, 234n1, 239n3; and ‘Holocaust denial’ literature 43–9; and political correctness 42–3, 224 internet: pornography on 137; racist material on 137 ‘ironism’ 106, 107–9; and postmodernism 107; and science 106; and ‘rationalism’ 109–113, 144 ‘jigsaw puzzle’ view of the search for truth 103, 120–1, 226–7 Kant, Immanuel 144–5, 192, 218, 222, 240n3; on the Social Contract 242–3n7, 245n14 Khommeini, Ayatollah Ruhollah 93, 236n5 Kitto, H.D.F. 231n Klarsfeld, Serge 4, 233n8 Kramnick, Isaac 169 language, role of 189–90, 202, 211, 220, 245n12 legs, function of 190, 220 liberal see liberalism liberalism: ‘absolutist’ 84–8; and arbitrariness 88ff.; and cultural diversity 169; defined 15, 152; liberal value system 15–16; ‘relativising’ 84–8; vision of the good society 89–90; ‘western’ 91–2 libertarianism 71, 164

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liberty of conscience: and the defensive posture 187, 202; and democracy 176; Locke on 198, as a model for free speech 185– 8, 201–6; and the right to vote 178–9 liberty of thought and discussion: and context 27; defined 26ff; Mill’s four ‘grounds’ for 3–4; narrowly construed 66–9; not identical in meaning to or coextensive in reference with ‘free speech’ 8; as a precondition for the discovery of truth 4, 138–9, 142; prioritised by Mill’s argument 24–6, 119; on religious toleration 19–20; selected Rawls’s rational choosers 193–4; widely construed 62–6; see also ‘classic defence’ of free speech literal contractualism 153–60; defined 153–4; no ‘deep level’ contract 156–8, 159; and Nozick’s argument 163–3; obligations of bystanders 158–9; obligations of direct parties 154–6, 159 Loach, Ken239n6 Locke, John 6, 153, 237n17, 241n2, 242n5, 242n7; on the contract 162–3; on the essentially private character of thought 13; ‘just bounds’ argument 199–201, 208, 211, 221; on ‘liberty of conscience’ 198; on ‘natural rights’ 7; and Rawls 176, 198; on toleration 7, 176, 222–3, Chapter Ten passim Lyotard, Jean-François 107 McDonald’s Corporation, ‘McLibel’case 137–8, 239n8 MacIntyre, Alasdair 90–91, 236n7, 236n10, 243n9 MacPherson, C.B. 235n7 Mailer, Norman 93 Major, John 139

Marcuse, Herbert 6, 134–6, 185, 217 market forces 133–4 Marx, Karl 3, 229n1 Microsoft Corporation 137 Mill, James 179 Mill, John Stuart 6, 212, Part One passim, Appendix passim; alleged élitism 236n4; appeals to our sense of ourselves as social beings 193; attitude to authority 240–1n3; ‘corn dealer’ example 29–32, 64, 231n3; and Darwin 229n1; four ‘grounds’ for the liberty of thought and discussion 3–4, 27–8; and Harriet Taylor 235n; and Marx 229n1; and Milton 120–30; on offences against decency 73, 215, 246n1; presents the classic statement of the classic defence of free speech 1, 3, 33–4; ‘rationalism’ of 94, 97ff, 113, 128ff.; on rights Chapter Five passim; on rights versus utility 70, 76; a rule-utilitarian 76–7, 235n7; on scientific method 97– 9, 102; vision of the good society 89–90; ‘zipper’ argument 235n Milton, John 3, 6, 7, 118–30, 136, 137–9, 153, 176, Appendix passim, 239n2, 244n7 Mirror, The 85 Murdoch, Rupert 138 Muribatoun 138 National Socialist White Peoples’ Party 63 ‘natural rights’: Locke on 7; Mill on 70, 76; Nozick on 74 ‘negative’ freedom 9 ‘no harm’ principle 30, 73 New York Knicks 92 Nietzsche, Friedrich 107 North American values 168 Nozick, Robert 6, 151, 153, 243n8, 243n10; literal contractualist 163–4; and the right to free

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speech 78–80, 171; on rights 70–80, 235n3; on the source of rights 74–6, 77, 164, 171 offences against decency 73, 215, 246n1 offensiveness, problem of 214–7 Papadopoulos, Georgios 47 Pericles 18–19, 21, 218, 222, 247n7 Philadelphia Convention 149, 161 Pilger, John 235n1 Pitkin, Hanna 162–3 Plato 6, 16, 231n12; on censorship 20–1; on ‘minding your own business’ 22; on the ‘noble lie’ 21; as a ‘totalitarian’ 20–3, 230n political correctness and the infallibility argument 42–3 ‘positive’ freedom 247–8n10 ‘possessive individualism’ 69 postmodernism 84, 104, 107 Popper, Karl: on Plato 20 prayer 186 principle of equal participation 182ff; and the right to vote 177– 9 ‘rationalism’ 94, 97ff., 113, 128ff., 109–13, 143–4, 210, 239n4 Rawls, John 243n1, 244n; apparent universalism 154–6; on ‘basic liberties’ 174–7, 191ff., 209; a conventionalist contractualist 161–2, 242n7; and cultural diversity 169; on democracy 177–85; on the historical origins of political liberalism 146–7, 212, 244n3; influence of 149– 50, 151; and Locke 176, 198; and the right to free speech 171, Chapter Nine passim; on rights 170–1; since 1972 194–5 Rees, J.C. 232n4 relativism see cultural relativism; epistemic relativism; value relativism

religious belief 115–6, 186 religious practice as a model for free speech 202ff. religious toleration and the origins of the modern argument concerning free speech Chapter Six passim, 146–7, 176, Chapter Ten passim, 212; see also toleration ‘repressive tolerance’ 134–6, 217 right to vote: as a basic liberty 178– 9; and liberty of conscience 178; and the principle of equal participation 177–9; see also democracy; vote/voting rights: as claims 71–2; and contractualism 170–2; and kidneys 75, 78–9; Mill on Chapter Five passim; Nozick on 70–80, 163–4; as sideconstraints 76 Rorty, Richard 6, 104–13, 139, 144, 210, 237n16, 238n18, on getting someone to believe something 110ff. Rousseau, Jean-Jacques 6, 172–3, 241n2 ‘rules of the road for seminars’ 28, 67 ‘Rushdie Affair’ 6, 91, 93, 236n5 Rushdie, Salman 50, 112–13, 138, 139, 140, 236n5, 240n9 Saatchi and Saatchi 51 Sandel, Michael 92–3, 166–7, 236n10 Sartre, Jean-Paul 93, 236n9 Saudi Arabia 89, 138 Scanlon, Thomas 8, 21–2, 38, 73, 196–7, 218–20, 231n14, 245n15; ‘misanthropic inventor’ example 44, 122, 230, 232n Schauer, Frederick 69, 216 Schwarzenegger, Arnold (and others) 167, 170 science 97–104; jigsaw puzzle view of 103 Searle, John 240n3

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seminar group model 27ff., 38, 53, 63, 66, 142–3, 208; as descriptive and as normative 80; and infallibility 234n1; and ‘the free market in ideas’ 69; and recent events 140; and the tyranny of the majority 132–3; and the ‘whatever the content’ claim 40 signalling to turn right 26–7 Singer, Peter 6, 232n2; acknowledged debt to Mill 34; on euthanasia 36–7, 232n4, 233n12; experiences in Germany 35–7; influence of Mill on 37–43 Skillen, Anthony 69, 234n6 social contract theory see contractualism Socrates 13, 89 Speakers’ Corner Effect 133, 134, 138, 142, 240n1 speech acts and the ‘free speech booth’ example 14 Stalin, Joseph 21, 46 Stephen, James Fitzjames 233n10 ‘suburban housing estate model’ 208–9 Sun, The 85, 232n5 Taylor, Harriet 235n Teichman, Jenny 233n5 Ten, C.L. 23 Thought for the Day (BBC Radio Four) 237n12 Thucydides 19, 22 toleration 25, 176; Locke on 7, Chapter Ten passim; Mill on 119–20, 126ff, 129; as a model for free speech 201–6 ‘true believer’ problem 93–6, 104, 211 truth: ‘collision’ of opinions as a precondition for the discovery of

4, 53, 68, 225–6; correspondence theory of 97ff; and happiness 86–7; liberty of thought and discussion as a precondition for discovery of 4, 138–9; operationalism and 99; and scientific method 97–9; value of 5, Chapter Six passim tyranny of the majority 130–4 United States constitution 149–50; and cultural diversity 169–70; First Amendment to 149 utilitarianism: consequentialism of 55, 80; relation to Mill’s argument for the liberty of thought and discussion 61–2 value relativism 83, 90–3, 113–14, 144, 153; and the continuum of values 114–15, 168; and contractualism 165–70, 211 Voltaire, François-Marie Aronet de 233n6 vote/voting: ‘audio-voting’ machine example 181; as a model for free speech 180–5; and Newtonian ‘input—output’ metaphor 181, 182; see also democracy; right to vote ‘whatever the content’ claim 39–42; and political correctness 42; and the seminar group model 40 Widdecombe, Anne 236n3 Williams, Bernard: objections to utilitarianism 56–61 Wittgenstein, Ludwig 245n12 Wolfenden Report 245n5 Wolff, Jonathan 246n1 Wolff, Robert Paul 68, 166

263