We can worry about the ontology of law, moral or legal, when we’re more at our leisure. But whether moral or legal, it’s an axiom of law that all is permitted save what is prohibited. This is because listing permissions would be prohibitively infinite, whereas the number of prohibitions is manageably finite. So law doesn’t tell us we can drive the speed limit. It only tells us we cannot exceed it. And that if we do, we cannot fail to pay the fine.
    Rights and duties are correlative concepts, orthogonal to which are those deemed ‘positive’ and those deemed merely ‘negative’. If you have a positive right to, say, assistance, then there’s someone out there who has a duty to assist you. If it’s on the ski slopes that someone is the first other skier to come along. If it’s treatment for your cancer, it’s the government.
    Some governments – in fact most governments – can’t afford to finance your cancer treatments, which is why in most jurisdictions you do not have a positive right to treatment for your cancer. More generally, then, because one’s right entails another’s burden, positive rights are relatively few and far between. Relative to what? To negative rights, which are – once again relatively – a dime a dozen.
    Well, maybe not quite that cheap. In some jurisdictions – in most liberal democracies – you have a negative right to speak your mind, by which is meant the rest of us have a duty not to interfere with your doing so. But in other jurisdictions – Russia, China, North Korea – you do not have that negative right. And even in those liberal democracies where you do, there are limits. What are those limits? They change with which lobby happens to be in power; and that, in turn, changes with the alacrity of the weather. So any claim, no matter how heartfelt, that “Dammit, I have a right to …”, is always open to the counter, “Well no, as a matter of fact you don’t!”
    Are there ever principled limits to, say, freedom of expression? Certainly there are. It’s just that whatever those principles might be, they’ll die the death of a thousand qualifications at your own hands. Such as? Well, apparently, I can’t say something that you know to be false, be it about the Holocaust or climate change or the Indian residential schools or … Or I can’t say something that, even if true, might undermine something precious to you, be it the right of Israel to defend itself, or that trans-women are women, or that there are indigenous ways of knowing, or …
    Some people believe – or at least they claim they believe – that they have the right to do whatever they like, including to think what they think, so long as it doesn’t impact the interests of others. Call this, if you will, the no-skin-off rule. This is a noble but Pyrrhic attempt. Why? Because there are among us people who are impacted by the mere knowledge that you’re doing what you’re doing, including thinking what you’re thinking. “Ah,” you might say, thinking this might save the principle, “but knowledge that p doesn’t count as being affected by p.” See? It’s as I just said. Death by a thousand qualifications.
    And even if you do think you can disqualify as actionable these ‘private’ opinions, the fallback justification, as Hobbes reminds us, is that “a man’s actions proceedeth from his opinions.” Were this not so, the having of an opinion would be a burden without compensatory payoff. So here’s another axiom: The sure fire precursor to incitement is sharing an opinion, and the sure fire precursor to sharing an opinion is having one.
    So, it would seem, every ‘drawing the line’ is partisan. In public discourse something is always beyond the pale. In Nazi Germany it was dissing the Fuhrer. In Stalinist Russia it was defending kulaks. In American today it’s doubting that pedophilia is contra natura. Liberals often say, “I think you’re dead wrong, but I’ll defend with my life your right to say it!” No they won’t. Neither will I. And I’m the very Platonic form of the liberal.
    In most so-called liberal jurisdictions you can advocate that we change the law, but not that we disobey it. Well, maybe that’s too quick. As a pro-Lifer you wouldn’t get away with withholding that portion of your taxes earmarked for the termination of pregnancies. But you’d probably get away with advocating we do so. You wouldn’t get away, at least here in Canada, with advocating the termination of the life of a particular abortionist, or even of unspecified members of the class of abortionists. And yet you would get away with advocating the termination of abortionists in another country. Across the river in Detroit? Well, maybe not. But abortionists in North Korea?
    It’s interesting – is it not? – that I can say of Donald Trump that “Someone should just kill that fucker!”, but I can’t say the same of Justin Trudeau. Interesting, but understandable. We don’t want anyone killing our leaders, no matter how vile we think they might be, but we’d cry only crocodile tears if someone took out their leaders, even if, unlike North Korea, their country is an ally. But maybe again too quick. Were I an Indian residential school survivor I can say of John A. MacDonald “Someone should have killed that fucker!” with as much impunity as I could say it of Adolf Hitler. So what’s going on here?
    The best that I can do is induce an answer, and so I stand to be corrected. But I’m guessing it has to do with proximity in space and/or time and/or credibility. Trudeau is here, Trump there. Hitler and MacDonald are both long since dead. And though I’ve advocated the killing of all Scots because, let’s face it, rolled oats in sheep gut is just disgusting, no one takes me seriously. That said, hyperbole has proven particularly problematic. Both Israelis and Palestinians have pronounced “From the river to the sea!” And each takes, or at least pretends to take, the other’s pronouncement as proof of genocidal intent.
    But worse is the current decertification of satire. “Remember,” I’d tell my students, when introducing theodicy, “the woman did tempt me and I did eat.” Clearly misogyny! But if they can’t understand satire, how are they to understand metonym? “The White House announced today …” Impossible. Buildings can’t talk.
    The problem, it seems, is that a speaker can no longer count on his listener being the man on the Clapham omnibus. And if we can’t speak the same language we can’t live together. But it’s not just language. We can’t live together without at least a minimal set of shared values. Social trust depends on it. And social distrust makes community impossible.
    And indeed apartheid is making its way back into our political arrangements, in equal measure self-inflicted as other-inflicted. Indigenous students want their own graduation ceremony. And towards the end of my teaching career I noticed I was beginning to avoid contact with those for whom my posing a question – that being what philosophers do – was judged reportable to the Dean as a macro-aggression. Is this growing discomfort just white settler colonialist fragility? Of course it is! And diAngelo’s point?
   Let’s turn now to a third axiom. For the same reason we can’t do without the prohibition/permission distinction, neither can we have a system of law, be it moral or legal, without the omission/commission distinction. This is because there are an infinite number of things you didn’t do today, but only a finite number of things you did. And we’re more likely to hold you accountable for the latter than the former.
    Not always, of course. I didn’t offer to drive my neighbour to her dental appointment, but I did wash my hands before lunch. I may or may not be answerable for the former, but surely not the latter. Still, as a general rule we’d want to say the onus is on me to defend what I did, whereas the onus is on you to condemn me for what I didn’t.
    But that understanding is currently under doubt. I didn’t condemn the Hamas attack of October 7, which meant I must have applauded it. I didn’t condemn the Indian Residential Schools so I must be approving of them. And so on.
    To be fair, what may be going on here is a (perhaps natural) conflation of an epistemic axiom with a legal one. In epistemology, absence of proof is not proof of absence. That’s what justifies being an agnostic about the existence of God. But this same axiom would be disastrous if applied to law. There’s no evidence the accused didn’t do it, so it’s entirely likely that he did.
    I could go on. And elsewhere I have. More particularly I’ve made heavy weather of the like-alike axiom, without which no cognitive system is possible. But with even the few axioms I’ve rehearsed here, my point should be clear. Those of us who are up in arms about the silencing of dissenting voices, be they on the right or on the left, would be well-advised to attend to the conceptual roots of this silencing. What’s happening is a shift in political power, certainly. But power always shifts. What’s worrisome is we’re losing the means by which we negotiate those shifts. And if we can’t negotiate, nothing remains to us but (what used to be called) ‘appeal to Heaven’.

Categories: Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask, Social and Political Philosophy

Tags: Apartheid, cancel culture, freedom of expression, microaggressions, philosophy of law, Robin D'Angelo, satire, wokeism