Jeremy Waldron (1)

An interesting piece on the ethics of hate speech legislation. The US is somewhat unique in the Western world for having such robust freedom of expression principles- in that hate speech restrictions are generally unconstitutional. Waldron, a legal scholar trained outside the US takes aim at what he calls American exceptionalism by laying down the best argument in favor of hate speech legislation.

As a threshold matter, Waldron is openly making a policy argument, and as a result avoids dealing with the complexities of First Amendment law (other than few references to the marketplace of ideas, seditious libel, Sullivan and Beauharnais). By doing so Waldron presents a more clear philosophical argument but at the expense of being less relevant to the legal conversation. By engaging mostly with the normative instead of the descriptive, Waldron dodges the constraints of precedent and doctrine that control law. In a sense, it is easier to present what one thinks the law ought to look like, instead of engaging in it wholesale.

However, the book read as a piece of political philosophy/ethics is still worth reading. Waldron looks at the hate speech legislation of non-US countries and tries to articulate the best philosophical foundations for them. Instead of simple appeals to emotions of the ugliness of hate speech (which regardless are still sprinkled throughout the book), Waldron roots his arguments in the philosophical concepts of dignity and assurance. Waldron argues that everyone has the right to a certain kind of ordinary standing and expectations of being treated as a person with dignity. He interestingly conceptualizes this as a public good, an assurance to all that when they engage in society, others will treat them as equals in the dignitarian sense. He believes that speech that attempts to undermine a person's individual dignity and assurance by focusing on a characteristic they share with a group can rightfully be banned. Additionally, Waldron thinks prefers the term "group libel", since his ideal restrictions would target more permanent expression (posters, pamphlets) that deface a well ordered society, by undermining dignity and assurance (especially a society that until very recently did not treat vulnerable groups well).

In a sense, Waldron makes "hate speech" legislation more palpable by limiting the ambit of it. First, he limits the restrictions to more permanent forms of expression. Second, he limits it to expression that would undermine the dignity of individuals. He is careful to draw a line between speech that does this and would be banned, and speech criticizing ideas or that cause offense (which would both be fair game). For Waldron, offense is a subjective reaction that frequently accompanies undermining of dignity (which is objective) but is analytically separate. To Waldron, the harm of hate speech isn't offense to an individual, but the harm to that individual's standing in society (he draws an interesting analogy to the purpose of old laws meant to protect the reputations of the aristocracy, now extended to all citizens). Hate speech, as Waldron defines it, seeks to replace the public good of assurance by threatening vulnerable groups and establishing a rival public good, that of assurance to other bigots that they are not alone.

Waldron then addresses two powerful counterarguments to his position. He discusses Baker's argument that hate speech, and all speech are extensions of autonomy as self-disclosure and it would be wrong to limit one's autonomy. Waldron essentionaly responds to Baker by arguing that the instrumental/self-disclosure distinction that Baker draws is blurred here, and that while Baker argues that all harm of speech can be mitigated by a thick-skinned listener, vulnerable groups shouldn't have to mitigate in the first place. Waldron then responds to Dworkin's argument that limiting hate speech would undermine the legitimacy of anti-discrimination laws (since the debate that preceded the discrimination laws was limited by the laws) by arguing that the restrictions on hate speech would not limit debate of ideas only expressions targeted at undermining the dignity of individuals. Waldron also makes an absurdity argument, that Dworkin's legitimacy argument carried to its full extent would nonsensical. Waldron also pulls in an interesting argument from Mill's On Liberty, in that debate is not needed to maintain a living truth since there has emerged a consensus over the equality of people.

The book is clearly a few essays threaded together with some transitions. That's a little annoying because parts of the book gets very repetitive (because of redundancy) and there are parts of the book that do not fit as well (the last chapter seems to be a tangential piece entirely that discusses the Enlightenment philosophers' views on toleration and how that extends beyond physical safety to engagement and mutual respect). However, I think this can be forgiven given the interesting tangents that this approach opened up. In particular, I found the discussion of old English cases including one that seemed to refer to a concept of "blood libel" interesting, along with Waldron's engagement with various critiques and counterarguments (he argues that hate speech legislation is not an example of majoritarian abuse, but majoritarian disabling that does not justify the typical first amendment distrust of government).

Despite some organizational problems, and repetition, the book has an interesting thesis and enough interesting responses to be worth a read, even for those hew closely to the first amendment orthodoxies.… (mehr)

Any and every book by Jeremy Waldron is worth reading, but this one is particularly important. For a long time, political philosophy has restricted itself to applied ethics. In this book Waldron tries to chart a new course towards normative analyses of political institutions - how powers should be separated, under what circumstances does opposition work for the general good, which degree of representative legitimacy is needed for enacting legislation on any given subject, and so on. As the author emphasizes, questions like this lie outside the purview of empirical political science, but they should be questions for political philosophy.

The author argues for this more or less new approach to political philosophy by showing how it can be done, and overall I think he does a good job. I learned much that I didn't previously know about political institutions, certainly much more than any regular non-philosophical how-parliament-works book could ever teach. The chapters in this book have been originally written as separate research papers. This is for the most part no problem, but especially the chapters on judicial review focus too much on American political institutions to be of general interest for readers used to civil law. The last two chapters on Isaiah Berlin and Hannah Arendt also seemed out of place.

But I did enjoy chapters 1-8 and I hope other political philosophers pick up the thread where this book leaves off. Which political institutions are preferable to others, and on what grounds?… (mehr)