A short while ago, I defended the freedom of people to say nasty, or stupid, things on sensitive subjects, so long as they don’t do so on my private property or against the rules set by owners of said. (The property point is one of the distinctive libertarian ways of framing the issue. You don’t have a right to paint slogans on my house or demand I pay for your blog fees). It is, I suppose, a sign of the times in which we live that toleration for speech that you don’t happen to agree with is now seen, in some quarters at any rate, as a “right-wing” issue. It should not be. Anyway, I was reminded of this point when I read this article about a stand taken by David Davis, the senior UK Conservative MP.
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The freedom to say nasty thingsMay 16th, 2012 |
 17 comments to The freedom to say nasty things |
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Peter Tatchell has a similar article in support of the “Feel free to insult me” campaign in today’s Times.
Wait, am I reading this right? It’s been illegal to insult people since 1986?
“62% of MP’s thought it should not be for the State to ban insults”
So, 38% thought they should?
Seersly?
Can we have their names please?
Andrew: I am pleasantly surprised, and you are spoiled;-)
If freedom of speech is to mean anything at all, then it must mean the right to make observations which are comical, idiot, rude and outrageously offensive.
Anything else is just censorship by degree.
Equally, if censorship means anything it means some measure of involvement by the state
Since I wish the state would fuck off out of peoples lives then I cannot accept it’s involvement in censorship.
There is no fundamental human right NOT to be offended.
The true underlying issue here is not freedom of speech.
It is the function of government in a liberal society as opposed to that in a collectivist society.
In this kind of use, to define and regulate conduct in the relations amongst people; whereby the offense to one party by another is “converted” to an offense against the social order as a collective, in the entity of the “State,” creates a power that limits liberty; and not just of speech.
In a liberal society, means are provided for adjudicating puported offenses occuring in the relations between people; usually through legal systems, as remedies for individuals, not as a grant of administartive power.
The collectivist society replaces that adjudicatory function with a function of regulating the relations among people and how they are to be conducted.
Offenses will still generate responses, that may be adjudicated in terms of provocations. That is the general limit in a liberal society.
RRS nails the crux of it.
That is such an important idea.
As in ‘The State of…vs….’.
Throughout the history of Anglo-Saxon jurisprudence, criminal offenses have always been viewed as offenses against the government, not against any individual. That’s why all criminal cases are styled “State v. Smith” or the like, and why the charge always includes some variant of “. . . against the peace and dignity of the State” (or “the Crown”). The victim of a crime is a “complaining witness”, not a party to the case (although he can bring a separate civil action for monetary damages, if appropriate). That’s how the state can bring a criminal charge even if there is no complaining witness (as with “victimless crimes” like prostitution), or even where the victim refuses to press charges.
Thus, while I agree with RRS’s comment as a description of how things ought to be, the sad truth is that it is not an accurate representation of how things actually are (or have ever been).
The solution, of course, is to remove speech from the criminal codes altogether, returning the resolution of disputes over “offensive” speech to the civil courts (and thus coming closer to RRS’s ideal). But that won’t happen, because people will always want to be able to call upon the force of government to back them up in their private disputes, and because those wielding the levers of power very much like both possessing that power and having the masses be dependent upon them.
In haste not to get smited, perhaps I was not clear.
Certainly there is criminal law (common or code), which is distinct from civil law.
Certainly there are matters of relations of individuals and groups with the administrative arrangements (governments, etc) for the aggregate social order, for which there are various processes for adjudications and enforcement.(traffic, zoning, taxation etc.)
I wrote of civil matters in a liberal society, those are issues, claims and disputes that arise amongst individuals and groups within the social order and for which the function of government has been historically* limited to provision of facilities for resolution (—mots, witans, courts, etc.) as between the disputants.
We are now at ephemeral statute law (enacted, amended, and repealed; as the winds may blow). The issue presented above as a free speech issue, arises because of a statute that makes an issue of offense given by one party to another no longer a matter between those parties, but makes the social order a party to the issue of offense from one side, through the designation of a crime (in lesser cases, misdemeanors, infractions, etc.).
*
[emphasis added]
My comment was to the effect that “how things actually are” in the role now assigned to government in regulating human relations is the issue, not freedom of speech – and it goes way beyond that singular freedom.
Without going to Pollock & Maitland, or even to Zane, simply the use of “returning” discloses that “have ever been” is not true of the historical provisions for adjudication processes. The impacts of these trends for the continued insertion of the collective (government) into the private sphere for other than provisions for adjudication and enforcement of the determination of private adjudications will have to be addressed if we are to have a liberal, rather than an authoritarian society. It is not an ideal, it is either or.
(that latter is the “have ever been”).
The major component that issues and maintains anti-speech rules and passes judgement and disciplinary proceedings is not the government or the legal system – but the MSM in conjunction with Academia.
It’s mainly Academia (and self annointed elite)that dreams this crap up – which then they farm out to the MSM which create strawman arguments to apply to the designated scapegoat of their choice.
Government/Bureaucrats/NGO’s then jump on the bandwagon and use what gets stirred up as leverage to their own advantage.
The way to void this nonsense is to make the MSM suffer by making them ridiculous by calling out all their lies and hypocrisy and holding it up to the light and laughing at it at every opportunity. Especially ridicule their choice of academic – pointing out the logical flaws gets two birds with one stone. If it can’t be taken seriously it can’t be put into law… once in law its harder to get removed.
I don’t think that is entirely correct, Laird. You may find this paper of interest. Also (quell surprise) from other sources (sorry, no links) it appears that if the forfeitures were to the Crown rather than the victim, that influenced the prosecution. In the change that occurred with the transition from Anglo-Saxon to Norman rule, settlements paid to the Crown were introduced, (although the private settlements continued) also, hangings were introduced. At least most of the stuff I’ve read takes that line. Even so, with some variations along the way, all the way into the 19th century it was the norm for private parties to bring criminal prosecutions that were nominally on behalf of the Crown. I think professional prosecutors in their present form are a product of the 19th century. Either Paul or RRS should known how much truth there is in these impressions.
What matters is who brings the prosecution, the victim on their own behalf, or a professional prosecutor working on behalf of the Crown (aka ‘The People’, ‘The Greater Good’, ‘Social Justice’, ‘Law ‘n Order’, etc). I think you will find this paper strongly supports RRS’s position and encourage you to read at least Part Three. Respect for Settlement and the Changing Rate of Appeals although that part will make more sense if you at least skim the earlier parts. The data makes pretty clear that it was the transition to presentment that harmed the victims chances for compensation. This is probably where tort had its origin via ‘trespass’. Notice that tort gained ‘market share’ in response to the deliberate sabotage of the settlement process.
Anyway, I recommend it. Many interpretations of historical data can be reasonable but “criminal offenses have always been viewed as offenses against the government, not against any individual” is almost certainly incorrect. It is an interesting paper.
And from the (Canadian) Federal Prosecution Service Deskbook –
I agree that RRS made a very crucial point about this entire situation.
It was a mark of the Framers’ precision that congress in the US is barred from making laws that abridge freedom of speech and the press in the very first notation of specific rights in the Constitution, the first amendment of the Bill of Rights.
This issue is critical in the endlessly continuing contest with the collective. Authoritarians of all stripes hate and despise the idea that ordinary people may have contrary thoughts, and they hate even more than they fear the idea that citizens may express those thoughts freely.
Observe all the allegedly great and powerful totalitarianisms now or in the past, and note how desperately they try to stifle the right of expression of their subjects.
I just read an interview with the blind Chinese hero who has defied that repressive regime in which he mentions the profound influence of Havel’s “Power of the Powerless” on his thinking.
Ideas are the true power of humanity. The collective knows its true enemy is the independent mind which refuses to be silent, but always finds a way to express its ideas, and demands for freedom, regardless of the penalties.
It is by the light and warmth of such minds that we are able to discern the possibility of freedom in our future, and strengthen ourselves to attain it
Veryretired and RRS (and others) – yes and well put.
Midwesterner – VERY important.
An English King was not a Roman Emperor – and Roman law was not “recieved” in Feudal England (or in lands that took the Common Law).
The King does indeed have the duty to maintain the peace (the nonaggressive principle) – but so does every free man.
The law is NOT whatever the government says it is (that is the Roman conception in the imperial period – it is not the “feudal” view), and free men in England were not the toys-of-the-state that Roman “citizens” were (disarmed and helpless).
Even after the Norman Conquest half the population remained free.
Indeed the youngest son of William (Henry) turned against his brothers and took the Crown for himself – after “accidental” death of William II (William Rufus).
How did Henry manage to come out on top in the civil war that followed (against his older brother)?
By appealing to the ENGLISH – by marrying the a direct decendent of Alfred the Great and by swareing to uphold a charter.
The charter of 1100 (a hundred and fifteen years before the Great Charter).
A charter that held that “law” is NOT whatever the state says it is – that the government can not change the basic laws (the nonaggression principle against the free – those with a right to be armed).
And it is every man’s right (and duty) to defend the law – even against the eldest son of the previous King (after all the Crown can be given to a younger son – if he is loyal to the principles of the law and the elder son is not).
“But Paul we did not learn all this in school”.
Of course you did not.
The statists wish you to believe that a “crime” is whatever the state says it is.
They wish to reduce people to the level of Roman “citizens” (under the Empire – disarmed and toys of the state, and to those that the state gave power to).
The Middle Ages knew such people – but it was not pretended that they were free.
They were called “serfs”.
Actually there were efforts to reduce the mass of the population to defacto serfdom.
For example the Stature of Labourers under Edward III, but such efforts went on at least till the time of Queen Elizabeth in the 1590s.
The effort (as with the late Roman Empire) was to remove freedom of movement from the majority of the population – and to make people undertake the occupations of their fathers. Not out of family tradition and it being the best way to make a living (which for most people it would be) but by the FORCE OF LAW.
I.E. the Roman (Imperial) concept of “law” as the “will of the state” – not the “feudal” concept of law as the traditions that kept the peace between armed free men.
All these efforts failed – the state might execute a few people (as it did, for example, after the defeat of the “Peasants Revolt”) but it could not impose de facto serfdom on places like Kent – which remained “unconquered” (a land of “Pop Larkins” – not disloyal, indeed not political but not semi serfs either).
This was because there was no large standing army (on the Roman sytem) or police, and no big administrative machine.
Indeed most of the economic legislation of the late Tudor period (which was just as bad as the stuff passed in Europe) was a dead letter in the north (for example in Lancashire) – which is why the industrial revolution was so strong in the north.
However, government control did not really run to the south of the river Thames just over the water from the City of London (the City of London was strong in its independece – but just “keeping the peace” over the river was the job of LOCAL PEOPLE acting by their own judgement).
It was not till the 19th century that such things as large professional police forces started to appear in English counties (made compulsory in 1856) and a large administrative machine (the “Civil Service”) was created.
Then (and only then) could statism really grow – with the aid of such things as DATA (the information provided by such things as the Census [1801 being the first in modern times] and the Births Marriages and Deaths Registration Act (1836).
Although, actually, it was not till the 1870s that government actually started to grow as a proportion of civil society) before then it was actually shrinking.
Anyway the state now pretends that reality has always been “Hobbesian”.
That Thomas Hobbes (not “a student of the Common Laws of England”) was correct – and that (as with the Roman Empire) a “crime” is just going against the whims of the state – that there is no law of nonaggression (which is bugger all to do with the state) and that the “King’s peace” does not mean the DUTY of the King (as a free man – indeed the leader of the free) to maintain the peace – but means some whim of his own.
This “posititivist” vision is a lie – an excuse for tyranny.
A Russian saying springs to mind…
“First they smash you face in – then they say you were always ugly”.
Because we are becomming serfs now does NOT mean we were always serfs, that law was always “the will of the state”.
There was a time when rulers who did the things that modern rulers do (tax people without limit and order people about in every detail of their lives) would have a got an arrow in their guts.
And this arrow would have been fired in the DEFENCE of the law.
What claim to the throne did Henry IV have against Richard II?
What claim did Edward IV have to the throne of England?
Even if we accept that Henry VI was not the rightful King (although the institutions of state said he was – and his father and grandfather had been King before him) there were people with a better claim to the throne “by blood” than Edward.
And what claim to the throne did the later Henry VII have over Richard III? Even if we reject the claims of Richard III there were many people with a better “blood” claim than Henry. He claimed to be the champion of the Law – someone who was comming in to punish an evil doer (an ALLEGED violator of the law – Richard) and take the defence of the law into new hands (his own – as the leader of free men in England and Wales).
And many free people (free people were armed people – by definition, led by the leading families but with their own weapons) agreed with Henry (rightly or wrongly) and flocked to his banner – to do battle against the enemy of the law of God.
Let us assume that Richard was guilty – both of the killing of Henry IV’s son and of the murder of the young children of his own brother. I am not saying he was guilty, but just say he was…
Would it have done him any good to pass a Statute saying his acts were “lawful”.
No it would not – because people did not accept that the “High Court of the King in Parliament” could MAKE law (that is a Hobbesian “Positvist” view) – it could interpret the unwritten and eternal law (and give judgements – in the form of statutes), but it could not go against the fundemental principles of the law.
If it did “he were no true King and it were no true Parliament”.
For a true King and a true Parliament SERVED the law (they were its champians – in the eternal war against violaters of the bodies and goods of the innocent).
So if a King plundered the goods of free people, and murdered the innocent – then it was the right (indeed the DUTY) of free people (lords and ordinary folk – and it was the duty of leading families to lead ordinary free folk in the defence of rightiousness, especially if it was also in their own interests….the English character is a mixture of hypocrisy and sincere belief, mixed together) to take up arms against this false King, and bring a true servant of the law to the throne.
Even if this new King had a very weak claim “by blood” to the throne. Although Henry VII had the good sense to strengthen his claim, by marrying well – after he came to power.
And what claim to the throne did Mary have over her own father James II?
We can be cynical and say “they had the sharper sword” and that is TRUE – but few would have followed them if this had been all there was to the matter.
In each case the claiment claimed that the existing person on the throne has VIOLATED THE LAW – had plundered the PROPERTY (the rights) of free people.
Now one can argue the merits of each individual case – and feudal people did argue the merits of the cases (with big axes on muddy fields – but also in quiet debate).
But this was the justifciation given.
And it is a justification that makes no sense (that no one would have listened to) if “the law” just meant “the will of the state”.
And if crimes were just “against the state” – for then how can the state commit crimes?
It was the same with Henry II against older brother.
Or with the Parliament (which did NOT mean the state in the 1640s) against the King.
In each case – truthfully or not, the claim was made that the ruler had violated the law (had violated the rights of free people – and that meant the PROPERTY of free people). And so it was right to use armed force against the ruler.
Again this would make no sense if “the law” just meant the will of the state, and if the only crimes were crimes “against the state”.