Challenging the liberal settlement.

• Date: 01 January 2006
• Author: Vernon, Richard

Within two weeks of the Danish cartoon-provoked riots, an Austrian court sentenced the "revisionist" historian David Irving, a person well known in European neo-Nazi circles, to three years imprisonment under a law that prohibits denial of the Holocaust. It is quite inevitable that those two events should be considered together. One forthright response is that the suppression of Danish cartoonists and the suppression of Holocaust-deniers are both wrong, because freedom of expression is a value that defeats all compromise, always. A second possible (but I think unusual--or not usually avowed) response is that free expression is of no significant value to begin with, so that nothing important stands in the way of suppressing any objectionable views or images at all, if they cause offense. A third response is that one or other of these events--mocking Muhammad, denying the Holocaust may rightly attract coercive response, but for context-specific reasons. That is the response that I want to discuss here: can one hold a background belief in free expression, but also believe that there should be contextually-justified exceptions to it? Such a position is very common, and, because of its evident moderation, politically tempting. But what amounts to a justifiable exception? Are there good reasons for them? Or are sentences that typically begin "I believe in free speech, but..." no more than bloodless equivocations?

The starting-point for discussion of freedom of expression in western countries is what I shall term--anachronistically--"the liberal settlement." In the early modern period, European societies had their fill of religious wars, and eventually came to adopt beliefs and practices that secured peace by decoupling religious and political claims from one another. As Locke (among many others) argued, if states can legitimately impose religion, then churches will be obliged to compete for control of states if they are to survive, justifying their claims on the basis of non-negotiable principles that make reasoned political coexistence impossible. ("Every church is orthodox to itself," he wrote.) So the solution is that no one's religion should be imposed, and hence a basic condition of citizenship is that each must accept the other's freedom to practice. This is of course to compress a long and complex story and to suppress many qualifications and exceptions, as well as to short-circuit the various rival high-level justifications that liberal political philosophers have offered for arriving at the goal of toleration. But some form of the liberal settlement is the taken-for-granted basis for the belief that before political contestation takes place--before we decide, that is, who is to win and who is to lose--a scheme of protective rights takes some important liberties of individuals and groups off the table so that they are not placed at risk. And the freedom to express one's beliefs--religious or otherwise--is generally taken to be among the most basic of those liberties. A settlement originating in religious pacification comes to inform a general view about the boundary between state power and personal entitlement.

In discussions of that view, there are several standard objections to the liberal settlement, two of which happen to be precisely relevant to the two recent cases under discussion. The first is that even a liberal political order is not only a scheme of general rights: it also embodies a particular community with a particular history that leads it to hold particular values. That fact may be celebrated, as an indispensable source of solidarity; but on the debit side of the solidarity ledger, it must also be noted that particular community values may exclude minorities in diffuse or indirect ways that are not adequately captured by the idea of rights-violations. The second is that the liberal settlement reflects something peculiar to the early-modern European case, that is, a form of religious culture that--however internally divided it may have been--made possible a more painless separation between private and public realms than other religious cultures can easily tolerate; for other religious cultures make more of the need for public observances. Both of these objections lead to a serious principled case for modifying (some) rights as they have been classically understood.

The first objection relates to the Irving case in Austria. To those who hold "communitarian" views of political society it is important that societies acknowledge their heritage, good and bad, in the course of understanding their identity. In a famous essay, Alasdair MacIntyre argued that each of us must learn our place in our...