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 se