The sensible modern liberal, feeling a little out of kilter with the times but determined to stick to principle, wants to say a couple of things about the State's role in all this, one about the law and one about society.
First, the liberal says that the law should allow people to say things. There are some limits (shouting "fire!" in a crowded theatre when there isn't a fire; libel; food-labelling laws) but there should be a very strong presumption that people can say whatever they want without the State stopping them.
But that's not all (the liberal continues). People can find themselves effectively forced to shut up, or to repeat what they believe to be untrue, not only by the power of the State but also by the innumerable penalties and incentives that Society has at its disposal, from the quiet "tut", to the full-scale cancellation: internet scandal, being sacked from one's job and suffering public disgrace. That power in Society, the liberal says, is not a good thing either. There are lots of powerful passages in On Liberty about how, even if what you believe is completely right, there are all sorts of benefits to allowing people to spout the opposite view. You can read all of them here (and some of them below).
So, the liberal concludes, the good, liberal State has reason to use its powers to encourage or protect the place of free speech in private institutions. If the universities all say you have to believe that X is right, then the State should provide some protection for those who want to go to university and yet say that X is wrong. Employers, bookshops, newspapers, social media companies: yes, I know they are private companies, the liberal says, and, yes, I know they can justifiably restrict what people who contract with them can or can't say, but the State should lean on them to keep these restrictions to a minimum. If you work for Coca-Cola, for example, it's fine for your employer to tell you that you can't post adverts for Pepsi all over your Facebook feed; but they shouldn't tell you what you can say about the filioque clause in the company of consenting adults. It's might be messy to work out the details, and we might have some hard cases at the edges, but (so the liberal says) we can at least go this far: let's have a presumption in favour of expanding the sphere in which people can speak freely and, if necessary, use the power of the State to help.
That, I think, is a fair summary of a certain strand of liberal's thought in the circumstances of today: the sort of liberal who may have no or little sympathy for the victims of 'cancellation', but is uncomfortable at seeing it happen; somone nervous at seeing Trump kicked off Twitter and Facebook; someone who knows the arguments about the difference between the private and the public sphere; someone who is, as I say, informed by the tradition epitomised in On Liberty. Someone like Scott Alexander (point 5 at that link is one of the prompts for this piece).
It's an important premise of this way of thinking that the State can be neutral or impartial: the State does not favour any particular moral code, any particular set of religious beliefs or unbeliefs, any conception of the good life. The liberal imagines a street in which one house is occupied by evangelising Muslims, one by a Communist preaching unity among the world's workers, one by Richard Dawkins preaching atheism and one by polyamorous investment bankers shouting "Greed is Good!" - and the liberal is happy. The liberal is just in favour of 'more speech' - he doesn't care about the content of that speech.
What the liberal wants to do is to float above the arguments of the social justice warriors versus TERFs versus conservatives. He wants to say that he's not taking sides on moral issues - he's just protecting the arena in which those issues can be debated. That is the promise of liberalism: neutral freedom, a flavourless medium to which a free people may add a thousand flavours.
I am going to argue that this way of thinking ultimately doesn't work in the real world. I will suggest that the State can't stay neutral: it has to descend into the fray - it has to take sides. That means that my view is similar to the views of those people who say things like 'silence is violence' and 'free speech is white supremacy': I don't agree with their slogans (or with much else that they say), but they're right on this point.
That's a shame. It's a shame because people who believed in the spectre of a neutral and impartial state helped create some of the best societies the world has ever seen. Like a Christian standing in the ruins of a pagan temple as the Goths sack Rome around me - or perhaps like Richard Dawkins listening to church bells while pondering the Muslim call to prayer - I wish that we could keep more of the old ways than now seems possible.
So why doesn't this kind of neutral liberalism work?
There are two problems. To see the first one, let me introduce Statement A.
Statement A: "It's really quite funny to laugh at people with Down's Syndrome. Here's a good joke along those lines [insert unfunny and offensive joke here]."
The "not going to prison for saying things" bit of liberalism is actually fine. The State has many claims on its time and resources, and sending merely unpleasant people to prison comes low down the list. You can say Statement A and the police will leave you alone. The liberal can hold that line.
The problem starts with the liberal's second stage, i.e. when the notionally neutral state begins to take steps to preserve or expand the sphere of free speech.
So, we all agree that Facebook should allow you to speak your mind, and people shouldn't be cancelled, and there should be give and take in the workplace, and etc etc etc. But ... Statement A? If someone persists in saying Statement A, and his Facebook friends disown him, and people turn them backs on him in the street, and he's "cancelled" then - tough. The keenest free-speecher in the world will only say that he shouldn't go to prison. But to have the State protect him from opprobrium? To force Twitter to host him or his publican to serve him or his colleagues to share their sandwiches with him?
Let's go to JS Mill himself and steel ourselves up for the fight for free speech to protect Statement A in the Senior Common Rooms, Senates and Saloon Bars of the Free World. What does Mill have to say?
"However positive any one’s persuasion may be, not only of the falsity but of the pernicious consequences—not only of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of an opinion; yet if, in pursuance of that private judgment, though backed by the public judgment of his country or his contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal. These are exactly the occasions on which the men of one generation commit those dreadful mistakes, which excite the astonishment and horror of posterity. It is among such that we find the instances memorable in history, when the arm of the law has been employed to root out the best men and the noblest doctrines; with deplorable success as to the men, though some of the doctrines have survived to be (as if in mockery) invoked, in defence of similar conduct towards those who dissent from them, or from their received interpretation.
Mankind can hardly be too often reminded, that there was once a man named Socrates ..."
Right, got it: it could be that pouring cold water on Statement A will be to commit the most dreadful mistake. It might excite the astonishment and horror of posterity. Our chap with the bad joke could be the next Socrates ...
No, it just doesn't work, does it? There is no way that any real-life political structure can neutrally pursue the value of unrestricted speech enough to protect people who say Statement A against the opprobrium of their neighbours. Nor, if we are honest with ourselves, should it. Cancel culture has its uses. There really are things that shouldn't be said in polite society.
So the liberal starts to retreat. OK, he says. Obviously, the State only needs to protect important speech. We're not forcing Amazon to sell 1001 Best Down's Syndrome Jokes, just books that are about really important things like trans rights and politics and religion and stuff like that.
So now I bring you the next statement.
But now I bring you the final statement.
Statement C: "It should be compulsory for all men to grow and wear those beards that have no moustache."
Statement C is political speech: it's about a change in the law! Of course that's protected and important speech! Amazon has to sell books that propose this position; universities can't sack or 'unplatform' people for saying it; Facebook can't censor it.
The problem is that Statement B - which, we have just agreed, enjoys none of the protection that really important points of view like Statement C enjoy - is a sort of counter-argument to Statement C. So maybe Statement B is political speech when deployed in answer to Statement C? Or maybe, with a couple of tweaks, Statement B can become the sort of political speech that the State ought to protect?
Do you think this kind of thinking will ever get us anywhere in answering the challenges of free speech? Maybe in theory, but in practice? And do you think that this has got anything to do with Socrates? What a load of nonsense. Frankly we don't care if people who say either Statement B or Statement C get cancelled: it simply doesn't matter.
But the problem for the liberal is this. We, philosophical naives that we are, can say that it doesn't matter. We can say that these are just silly invented sentences that will never arise in reality. But the impartial State can't. If it is really standing back from the content of all of these Statements - if it is really neutral among all the different moral theories out there - it has to protect all of them equally. It can't get into saying "this is just a stupid theory and the State is not going to protect you": that is to descend into the arena and pick sides. The only basis upon which the State can say that Statement C is not worthy of the State's protection, while at the same time saying that the statement that, say, a person who changes their legal gender has (or has not) in fact changed their sex is worthy of protection, is because the State has decided that the content of the latter statement is worthwhile while the content of the former is not. That means that the State has descended into the arena - it has picked sides: it has ruled some arguments in and other arguments out. It has a theory of what counts as a good moral argument and what doesn't. It's not neutral any more.
To be clear, exactly the same problem appears in reverse if we try the opposite approach to the problem, i.e. companies trying to keep politics out of the workplace. We find that Statement C is excluded from the workplace, but Statement B is fine. Or take the example of companies supporting the BDS movement. Surely it was ok for companies to boycott apartheid-era South Africa? Or to refuse to deal with states involved in slavery or child labour? Which is to say: some political decisions are justifiable - we are only arguing about which ones. If you are a liberal you might try to fall back on 'only in exceptional circumstances' line, but that's no answer: ok, the SJW says, I say that Israel is exceptional (after all, I'm not arguing for sanctions on Burundi or Nepal) so let's discuss that question. Either way, in the real world, you can't get away from discussing the content of political beliefs.
Maybe you can construct an armchair theory for how the neutral State can go about widening the sphere of free speech in private institutions in a way that pays no attention whatsoever to the content of that speech. But you can't do it in reality. The way it happens in reality - the way it has to happen - is that the State picks and chooses what kinds of speech are protected, and which ones are not.
Just to see this, let's turn for a moment from my carefully-constructed easy examples to the real world. Here's an example of this kind of freedom-protecting legislation in the UK: "The Equality Act 2010 says you mustn’t be discriminated against because of your religion or belief. ... Something can be a philosophical belief if you strongly and genuinely believe in it and it concerns an important aspect of human life and behaviour. The courts have said that the belief in man-made climate change and spiritualism are philosophical beliefs. But a political belief is not a philosophical belief." (A political belief is not a philosophical belief? Try telling that to Karl Marx. Or to the people who marked my Political Theory Finals paper.)
This strikes me as a perfectly defensible attempt to protect certain kinds of free speech in private organisations. But it's hardly neutral, is it? The State - that coercive power with a monopoly on the legitimate use of force - has decided that spiritualism is one side of the line but politics is the other, although a belief in climate change is not on the political side of the line. That's picking sides. That's deciding, as the quotation says, what is an "important aspect of human life". We really are in Socrates' territory now.
That's the first problem: the State can't, as a matter of practicality, protect any area of free speech without making value judgments. We have to say goodbye to neutral liberalism and adopt a theory of what is better and what is not. The liberal can't carry on floating above the arguments - there is no "above the arguments". Allowing a social situation to exist in which certain views are capable of being comfortably advanced really is taking sides: silence is violence, if you want to put it strongly.
I don't claim that this is a new or original criticism of philosophical liberalism (which, it turns out, is not philosophy anyway, according to the law of the land), only that recent developments have made it clear that the theoretical objections to liberalism that amused the academy can no longer be waved away by practical people.
The second problem is a more subtle one. Let's take your most pragmatic and fair-minded liberal, your Scott Alexander who knows when people are making trolling statements about beards and when they are arguing about stuff that really matters. The liberal is not really - not deep-down - neutral at all.
Let's go back to the boisterous street where Richard Dawkins argues with the Muslims and the Communists. The liberal loves it here. Eveyone can have their say! The marketplace of ideas! No shutting up Socrates here!
But there is a potential problem for our happy liberal. Some of the people in the street want to change the structure of society with the effect that certain people, or certain ideas, are shut down. Take the Communist who wants to ban religion and capitalism. The liberal is happy for this view to be expressed and for people to be persuaded that it is right. But the liberal is not happy for too many people to believe it. Let's say that lots of people take up Communism and start to "cancel" religious believers. (Remember that this is all done by free association, not the power of State.) What then?
Back to Mill:
"That mankind are not infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless resulting from the fullest and freest comparison of opposite opinions, is not desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognizing all sides of the truth, are principles applicable to men’s modes of action, not less than to their opinions. As it is useful that while mankind are imperfect there should be different opinions, so is it that there should be different experiments of living; that free scope should be given to varieties of character, short of injury to others; and that the worth of different modes of life should be proved practically, when any one thinks fit to try them.
...
In our times, from the highest class of society down to the lowest, every one lives as under the eye of a hostile and dreaded censorship. Not only in what concerns others, but in what concerns only themselves, the individual or the family do not ask themselves—what do I prefer? or, what would suit my character and disposition? or, what would allow the best and highest in me to have fair play, and enable it to grow and thrive? They ask themselves, what is suitable to my position? what is usually done by persons of my station and pecuniary circumstances? or (worse still) what is usually done by persons of a station and circumstances superior to mine? I do not mean that they choose what is customary, in preference to what suits their own inclination. It does not occur to them to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke: even in what people do for pleasure, conformity is the first thing thought of; they like in crowds; they exercise choice only among things commonly done: peculiarity of taste, eccentricity of conduct, are shunned equally with crimes: until by dint of not following their own nature, they have no nature to follow: their human capacities are withered and starved: they become incapable of any strong wishes or native pleasures, and are generally without either opinions or feelings of home growth, or properly their own. Now is this, or is it not, the desirable condition of human nature?"
In our times, from the highest class of society down to the lowest, every one lives as under the eye of a hostile and dreaded censorship. Not only in what concerns others, but in what concerns only themselves, the individual or the family do not ask themselves—what do I prefer? or, what would suit my character and disposition? or, what would allow the best and highest in me to have fair play, and enable it to grow and thrive? They ask themselves, what is suitable to my position? what is usually done by persons of my station and pecuniary circumstances? or (worse still) what is usually done by persons of a station and circumstances superior to mine? I do not mean that they choose what is customary, in preference to what suits their own inclination. It does not occur to them to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke: even in what people do for pleasure, conformity is the first thing thought of; they like in crowds; they exercise choice only among things commonly done: peculiarity of taste, eccentricity of conduct, are shunned equally with crimes: until by dint of not following their own nature, they have no nature to follow: their human capacities are withered and starved: they become incapable of any strong wishes or native pleasures, and are generally without either opinions or feelings of home growth, or properly their own. Now is this, or is it not, the desirable condition of human nature?"
The liberal knows that we need these "experiments in living". That means that, once enough people become Communist, and start sneering at religious people (and at the bourgeois, rentiers, people with inherited wealth etc), and keeping them out of voluntary organisations and the media and the professions and so on, once they exercise a "hostile and dreaded censorship", there comes a point at which the liberal starts to stand up for the religious people. (Doesn't he? He certainly would if, instead of "Communist" and "religious people", I had said "evangelical Christian" and "gay people". He's neutral!) He needs to keep all potentially valuable ways of life realistically open to the discerning and free individual choosing how to live his life.
It's not that the liberal is secretly a conservative, as some radicals suggest. On the contrary, he doesn't mind vast conversions from Islam to Christianity and back again, and he would happily stand up for Communists against the capitalists if the tables were turned. (Recall the issue of 'black-listing' Communist or Un-American writers: the power of a free society to cancel can be used against anyone, and the real liberals don't like it however it is used.) He positively welcomes whatever new experiments in living you can come up with. If you think the liberal is a conservative then you don't understand either side of the debate between liberals and conservatives.
It's just that the liberal has to stop anyone winning. Once society agrees that X is right then it will start exercising its dreaded power of censorship, it will start bowing the minds of the multitudes to the yoke of the few. The liberal doesn't mind anyone saying anything - but he minds people agreeing with them. And that means that, hard as he tries to be neutral, he is ultimately on the opposite side from all members of proselytising creeds which want to enforce a speech code. Which means that the liberal is on the other side from SJWs, just as he is from Christians and Muslims. He is no more than an insincere, fair-weather friend to anyone who wants to change society's attitude to freedom.
So I don't think that liberalism works if it simply seeks to be on the side of 'freedom' or 'keeping politics out of it'. We can now see that the reason that this looked like a neutral position in years gone by was simply that we took for granted a great many unspoken premises about counted for 'politics'. I used some silly invented sentences above, but could Mill ever have foreseen this story: "Kellie-Jay Keen-Minshull told the BBC she paid £700 to have "woman, wʊmən, noun, adult human female" put up. // But it was removed after an LGBT activist complained Ms Keen-Minshull's campaign represented a "hate group""? Or this one: "So they asked how I would define a woman, and I said that my classification of a woman is somebody who is born with a vagina and the ability to menstruate. // There was uproar. It was like putting a target on my back." Would Mill have expected the dictionary definition of a woman to be more or less controversial than any of Statements A to C? Once people started to question these unspoken premises we ended up in the position of Scott Alexander's correspondent:
Sensible, freedom-enhancing liberalism doesn't make sense in theory. But it did make sense in practice. It made sense as providing a series of workable compromises to which enough people could give assent in order to avoid social friction. That's really not a bad result.
To see what I mean, let's take one of the oldest and most intractable of free-speech issues: anti-semitism. Holocaust denial is illegal in some countries. Obviously the true liberal can have no truck with censorship on that scale (although most people can see why Israel and Germany might well have different laws on the subject from the US and UK: principle be damned, history matters). In the UK, under the old liberal order, we had a different balance: anti-semitism didn't get you sent to prison, but it could get you cancelled. You could get away with a certain number of off-colour jokes, suspiciously enthusiastic support for Palestine and the odd rant about 'Zionism', but full-scale holocaust denial would bring about the David Irving treatment. You might be hard-pressed to define exactly when Ken Livingstone crossed the line, but we somehow know that he did. It was a messy compromise. But it worked.
Where did we find strict liberal principle in that compromise? Where were the experiments in living and the potential Socrateses? Nowhere. What we had instead was something that worked, something that kept an historical affliction to, if not the minimum, at least a minimum, while at the same time maintaining a reasonably large sphere for free speech: something that founded a compromise which enjoyed the support of all sorts of people for all sorts of reasons.
The old compromise position on anti-semitism might be breaking down under the new rules. Certainly other compromises are breaking down. Some of these compromises, for example on gender issues, are ones which we never realised were compromises at at all.
Some conservative thinkers, seeing that these compromises are breaking down, are staking out their own maximalist positions in the all-out war over what the perfect society looks like. At a certain point in the collapse of a liberal order, that is a rational approach: we might call it the Spanish Civil War option. Already the International Brigades are mobilising to fight in America's culture wars, and hope to bring those wars home.
But those of us who don't want a Spanish Civil Culture War need to enlist liberals to create new ceasefires, new DMZs. For the reasons I've outlined above, I don't think they can't rest on any particularly persuasive general principles to do so. They can't do what they really want to do, which is to say that there is a solution that does not involve taking sides. Instead, they will have to say that some views are right (at least a little bit) and some views are wrong (by and large).
This can be done. I have quoted so much of Mill above because he has not been bettered at putting forward arguments for 'liberality' in the best sense, the liberalism which is itself a theory, every bit as comprehensive as that of SJWs or Integralists, as to how society ought to be ordered. Mill's is the best account of why you should want to live in a liberal society, one in which peculiarity of taste and eccentricity of conduct are not shunned equally with crimes, one where we each choose what will enable us to grow and thrive. It's an appealing vision, perhaps more chaming even than Curtisland. It is the vision that animates many people who traditionally voted for conservative parties, and those who find themselves increasingly attracted to such parties: "InCons" (= involuntary conservatives, in the same way as involuntary celibates are "incels"). And it works: it is, I believe, the vision that animated those who created the decent societies of the West.
So forget philosophy and become practical. "What would Mill do?" is not the worst approach to the culture wars, even if "What would Mill think?" does not quite do the trick.
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