Liberalism and the End of History: Rules, Laws, Political Correctness and Free Speech

This post is a bit late in coming, but I’m combining different lines of argument to get at what I think is an interesting and controversial result. But because what follows is going to be complicated, I want to take the time to ensure that I’ve got it right.

Modern left-liberals believe 3 things, and it seems that these three things form an inconsistent triad. At least one of them will have to be given up. Let me roughly state what these three things are and I’ll try to show why they are inconsistent.

1. People are morally obligated to respect others, including members of minority groups by avoiding, in their conversations, use of certain words and phrases that are racist, homophobic, transphobic, fat-phobic, able-ist or in any way derogatory of those who lack privilege. In fact, violation of this obligation is reasonable grounds for criticism and censure by others.

I will call this obligation spelled out in 1, the obligation to be politically correct (PC).

2. People have a right to free speech

3. Even if minorities formally have equal legal rights and formal opportunities, persistent substantive inequalities can be just as important vis a vis political justice.

On the existence of Rules

Kazzy asks:

Yes, when I say “rules”, I mean that which we enforce with authority.

I do not think white people should use the N-word. If I heard someone use it, I might even say, “You shouldn’t say that.” But the only mechanism through which I’d actually try to stop them would be education… Dialogue… Conversation.

Does that mean I think “White people shouldn’t say the N-word” is a “rule”?

To which the answer is yes.

According to HLA Hart,

where there is such a rule deviations are generally regarded as lapses or faults open to criticism, and threatened deviations meet with pressure for conformity, though the forms of criticism and pressure differ with different types of rule.

Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally
accepted as a good reason for making it. Criticism for deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when deviation is threatened. Moreover, except by a minority of hardened offenders, such criticism and demands are generally regarded as legitimate, or made with good reason, both by those who make them and those to whom they are made.

(HLA Hart, The Concept of Law[1], pp. 55-56)

 

When someone without N-word privileges uses the N-word, his or her use of it is normally considered grounds for criticism. When Kazzy, along with most other people in the English speaking world urge people not to use the N-word, we create social pressure to conform with that directive. We generally regard such criticism for using the N-word as legitimate. Of course, this doesn’t mean that there is a law. But this distinction may not be as significant as it immediately appears.

According to Hart, a legal system has rules of recognition, change and adjudication. So Hart clearly does not intend the above account to apply merely to legal rules. After all, according to Hart, if you criticise yourself for failing to wake up at 7 am (presuming you ordinarily do so), then you have made waking up at 7 am a rule for yourself. Even if this latter sounds dubious to you, the widespread avoidance of saying the N-word and the quick criticisms of anyone who does say it point to the existence of a rule.

But is it coercive?

At this point you might say that fine. Not saying the N-word is a social rule and is probably even a rule of social morality. But its not coercive and that is what matters. I think we should pause here. If you are willing to declare the sort of social pressure that makes people avoid saying the N-word non-coercive or at least not relevant, you should be willing to discount the social pressures that influence many women to choose “mommy-track” or other pink-collar jobs (supposedly more fulfilling but definitely less financially remunerative work). Modern day feminism (and for that matter a lot of modern liberalism) is not going to be happy with a thin liberalism that only secures formal equal liberties and opportunities. The existence of equal formal liberties is fully consistent with the existence of asymmetrical dependence and domination relations that are shaped and maintained by informal social pressure. One enduring feminist complaint has been that a lot of work informally regarded as “women’s work” commands lesser or even no pay. If you are committed to the notion that informal social pressure is just as (or even almost as) problematic as overt formal coercion, then the informal social pressure to refrain from saying the N-word should be almost or even just as problematic as a law that criminalises its use. But I doubt anyone here actually believes that there should be a law against saying the N-word. Contrast this with the way liberals talk about workplace equality. There, liberals are consistent. Not only is it wrong for the government to coerce women to prevent them from entering the workplace, it is also wrong for anyone to criticise women for entering the workplace. In fact, liberals believe that it is acceptable to publicly criticise people who criticise women for working instead of staying home. Contrast this with how even liberal Christians[2] find it problematic to publicly criticise someone for not being Christian. For the liberal Christian, religion is a matter of private morality[3] and it is thus inappropriate to publicly criticise people for failing to be Christian even if he thinks that people ought to be Christian.

Another way to appreciate the contradiction involved is to look at Vikram’s account of what justifies freedom of speech. On Vikram’s account, free speech is a truce. However, logically, that is not the only symmetrical coordination point. Why couldn’t there be a truce where everyone agrees not to say offensive things about the other person? In fact, isn’t that the more common solution that we find in playgrounds?

Does the coerciveness in fact matter?

Vikram’s point is defensible only if it is rational to prefer having the risk of being offended and being offensive to someone else to not being offended and not being able to offend others. On a utilitarian calculus, if Americans by and large share this preference, free speech is a utility maximising rule. However, if that is the case, a general PC norm should be sub-optimal. The requirement to be respectful of everybody heavily restricts what one could permissibly say. And this restriction is sufficiently burdensome as to outweigh the burden inflicted on people when disrespectful terms are used on them. Or, at least, so we must presume if we are to think that free speech is the appropriate truce point. Notice here that the primary consideration is not the burden imposed by a given punishment, but the balance of benefits and burdens that are individually and collectively incurred when everyone complies with the rule. Thus, any additional burden imposed by instituting a legal rule against saying the N-word matters either very little, or not at all. In addition, given the fact that people can lose their jobs or take enormous hits to their political careers by saying the N-word in others’ hearing[4], it is hard to believe that a $1000 fine could make things so much worse as to make the response disproportionate. It would seem amazingly coincidental that the spontaneous social response to the public utterance of un-PC statements was so exactly proportionate that any further legal response necessarily becomes a disproportionate response to undesirable speech acts. Thus, if we want to maintain a defence of free speech, consistency requires that we limit our criticism for un-PC statements to those persons who have already committed themselves to respecting members of that group[5].

A Third Way?

One problem with Vikram’s argument is that it is not universalisable. It might be that the American people prefer to risk being offended than to have limitations imposed on what they want to say. Certainly, the widespread prevalence and support of the no-N-word rule seems to be counterevidence to this claim. But, it is implausible to think that people in other societies would have the same preference ordering. If people in other societies preferred that they were prevented from saying offensive/disrespectful things to being allowed to say those things but risking offense from others, there seems to be nothing we could say that would show that people in the other society have a wrong preference ordering.

Perhaps there is something we could say in defence of free speech, but it is a more modest defence than even Vikram’s already modest defence. What separates the societies which prefer that everyone’s speech be restricted to those that prefer that everyone’s speech be free? We can make the following diagnosis: In the former, people’s utilities take a relatively larger hit when they feel that they have been criticised or disrespected. One explanation (not a justification) for the Charlie Hebdo attacks is that those fundamentalist Muslims felt that the jokes were threatening to the very core of their identity. The thing about most of us in more secularised countries is that we don’t take such criticisms so personally. Even the Christian right in America don’t take criticism by the likes of PZ Myers and Richard Dawkins that personally. It is, in a certain sense, an intellectual exercise[6].

Let us modify Vikram’s example a bit. Suppose the Catholics and Protestants are killing one another at least partly because they keep saying horrible things about the other. Recall that there are multiple ways in which to configure the truce. In the short and medium terms, the sort of truce that would, in a lot of such cases, work is one where they are not only not allowed to kill one another, they are not allowed to say anything bad about one another (at least in front of the other). If they were allowed to speak freely, the mutual killing would continue. Suppose now, there is a rather tense, but peaceful coexistence. As the violence recedes into history, a new generation would grow up with no memory of inter religious violence between Catholics and Protestants. The peaceful coexistence would be less tense. They may also be slightly more willing to regard criticism of their religion as something other than an existential attack. They might be willing to relax restrictions on speech slightly. Suppose these restrictions are relaxed just a bit. Those who grow up in those conditions are likely to be just slightly more used to criticism that is not an attack on their core identities. That generation is going to prefer even more freedom of speech than the previous generation. In Singapore, the younger generation is more comfortable with criticism than the older generation. Eventually, we may suppose that in some future iteration, society will be comfortable enough with criticism to permit full freedom of speech. It seems that this is now the case with America. When society has reached that point, they are going to be less willing on the whole, to entertain restrictions on speech. So, although there are other possible equilibria, free speech is the only stable one. Perturbing the other equilibria is likely to send those equilibria further in the direction of greater freedom of speech. Perturbing the free speech equilibrium will send it to another equilibrium which also respects free speech, if any are available, or result in the original equilibrium obtaining again, if none others are. A similar account can be provided for other liberal norms. If I am right about this, then Liberalism, especially neoliberalism/neoclassical liberalism can thought of as the end of history. This is borne out by two trends. The first is an expansion of civil rights in spite of resistance from the right. The second is in the spread of neoliberal capitalism globally. Of course, as radical as my thesis may be, all I have stated is an is, not an ought. So, let me address that now.

The intuition that I wish to support is that in order for something to count as a moral ideal for a society, it must be stable for the right reasons. A set of social institutions is stable for the right reasons when the moral dispositions of those who are raised under those institutions motivate them to support said institutions. Perhaps this notion of stability is not sufficient to establish that something is a moral ideal, but it is necessary. Moreover if every other account of justice other than liberal ones fails to satisfy this condition, it is sufficient to establish that at least some liberal account of justice is true.

The argument for the stability requirement proceeds as follows.

1. If some institutions encapsulate a moral ideal expressed by a given set of principles, they would, if instantiated, be perfectly just according to that set of principles.
2. If an institution contains within it features at t1 that would cause it to change in such a way that at some subsequent t2, it was unjust (as according to the principles it encapsulates) in some respects, then the institution was flawed at t1 itself. In fact, the institution can be said to have been unjust at t1 itself.
3. If one is free to idealise people’s motivations in any way one chooses to, then there are potentially an infinity of institution+motivation combinations that could satisfy a given principle.
4. If a given level of idealisation does not allow for the selection of some institutional forms over others, that level of idealisation is inappropriate for institutional evaluation
5. One should place realistic limits on how the motivations of the people in society are idealised. (from 3 and 4)[7]
6. If an institution requires a sense of justice that people cannot ordinarily bring to bear even under favourable background conditions, then the institution itself is flawed. (from 2 and 5)
7. If no institutions could stably instantiate a principle, then that principle cannot be instantiated (from 1 and 6)
8. If “ought” then “can”

Conclusion: A principle which cannot be stably instituted under favourable but realistic circumstances is not one that we ought to encapsulate those principles in our institutions. (from 7 and 8)

Since only liberal institutions are stable for the right reasons, only fully liberal institutions can be perfectly just.

Conclusion:

So, let’s bring this back to the rule of social morality which tells us not to say the N-word. We could say one of two things about it. We could either say that it is in fact stable for the right reasons and thus perfectly consistent with liberalism just as a law banning N-word would not be stable for the right reasons and is thus inconsistent. It is at least somewhat unclear whether this can be said about all PC requirements.

For some of the PC requirements, which we cannot say are stable for the right reasons, we might say that they are good half-way houses. Temporary truce points on the way to a better kind of social morality. In this case, one reason not to have a law which expresses these rules is that making it into a law ossifies those rules. I am somewhat inclined to think this plausible as at least in SSM, it is the law which has been lagging behind social morality. The problem is that this does not square with what Hart and Gaus say about social rules in the absence of rules of change. In a pre-legal system, the social rules are harder to change. Making something part of the legal system according to both theorists is supposed to de-ossify the rule. One way we could resolve this is to say that the sort of rules which are supposed to be de-ossified by incorporation into a legal system are different from the sort of rules of social morality we are talking about. Or we might just say that Gaus and Hart are wrong about this. Perhaps this should be decided on a case by case basis. What are your thoughts?

For PC requirements that we could not justify in either of the above ways, we may very well have to conclude that those demands are unreasonable.

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[1]This is a book that everyone should read. It is still, by far, one of the best books on jurisprudence out there. In fact, it is far better than Ronald Dworkin’s Law’s Empire

[2]I mean Christians who are politically liberal, not necessarily theologically liberal.

[3]The difference between private/community morality and social morality is really important here. I would recommend reading PF Strawson’s 1961 paper, Social Morality and the Individual Ideal.

[4]If you don’t believe me, I dare you to non-ironically use the N-word in front of your colleagues in casual conversation to refer to African Americans. If you don’t get fired or at least severely reprimanded, I will pay you $50.

[5]After all, there is no inconsistency in believing that women, ethnic minorities and LGBTQ people are deserving of our respect in those particular ways, but that fat shaming is fully legitimate or that disability advocates are just silly in insisting that they are not disabled, only differently abled.

[6]Incidentally, this is partly why the west is seen as decadent. You take religion so lightly that you tolerate blasphemy.

[7]Admittedly, the move from 3 and 4 to 5 requires more argument than I am willing to provide here. But, 5 nevertheless seems right to me and it seems pointless to idealise people to an unrealistic extent which still falls short of complete idealisation.