Our offended selves
Subjective, judge-diagnosed feelings cannot be the basis for law
All societies have established rules to order themselves by. These most readily manifest as laws, which bind all members of the society even if they disagree with them. That we have laws is not because a normative code is in itself a public good, it is simply because without them society cannot function. And it is because of this that the law is not optional. Equally, however, for this all to work the law must be ad maius bonum — for the greater good. Not for the good of any one individual above the rest.
Conversely, a society without rules would rapidly fragment and collapse. However a corollary of this is that a society where the laws and rules are not designed for the good of everyone is itself unstable. This could be because the law, as it did in centuries past, favours the rich and powerful. Or, and this is a much more modern curse, because the law elevates the values of the individual — the ‘me’ — above the collective values of the group — the ‘us’. The law should be a manifestation of the latter: we don’t ban speeding because you or I personally dislike it, we ban it because there is a public desire to prevent car accidents.
This is a mistake the more ardent libertarians often make, whereby they vaunt the independence of the individual above the rest. Whilst attractive philosophically to younger conservatives (I was one too, once), it is fatally flawed. For society to function, sometimes individuals have to be compelled to do things they don’t want to do or vice versa. But, as we will see, progressives on the other side of the political spectrum make exactly the same mistake.
The law is made in Parliament, by the elected representatives of the people. Superficially, the idea here is obvious: if the people have a stake in how they are governed they are more likely to respect the law and equally the law has a better moral mandate. But this hides something else. By making laws in an open collaborative way we try to ensure that we mash together all the disparate values of people to discern what is for the greater good. We also ensure people actually know what this even is, which is actually more important than it first seems.
Parliament has a secondary advantage. It is self-correcting. In the past we had, usually from the Church, moral arbiters. The problem there is not necessarily that they were bad or wrong, that is too simplistic. It is that it is hard to feel involved in their decisions, and whilst morals obtained from religion are not to be ignored, it is hard to self-correct over time as society and the definition of the greater good changes and evolves.
For society to function, sometimes individuals have to be compelled to do things they don’t want to do
And this is where we hit a modern problem. It centres around an amorphous ‘right not to be offended’ and its cognates that a certain sort of modern progressive espouses. The problems with this are extensive, but they all stem from the substitution of what is the common good for ‘us’ with good for ‘me’.
A stark example of this is the regulation of advertising. Quarrels in this domain are not new but they all follow a similar theme. Parliament has enacted that advertising cannot mislead — there is a general public desire to not be missold things — but it has not enacted that advertising must be tasteful per se. Instead there is a regulator which claims it is capable of making these decisions.
But what is taste? And how is it defined. I am reminded of the minor furore over Antonio Federici (an ice cream manufacturer) using an advert of a ‘pregnant nun’ to sell their product. Undoubtedly a segment of the population disliked this image, it offended their values. But it did not offend against the public good as established by laws passed by Parliament — there is no right not to see pictures of models dressed as pregnant nuns eating ice cream because society as a whole has decided that there should not be.
That advert was ‘banned’. Not by a court or tribunal, but by the Advertising Standards Authority — which in practice is little different. In other words a small group of people decided to take the view of one segment of the population and declare that it was a value held by everyone.
If, perhaps, this problem was solely related to the regulation of provocative frozen dairy product adverts it would not matter. Yet it is not. We see countless attempts to use the courts to impose a view of my values on us. Judges are uniquely badly placed (as is the ASA) to make that sort of call. For one they are constrained (loosely speaking) to only consider the material before them, which makes impossible the sort of contextual approach taken in parliament to divining what the public good is. But more fundamentally, a court has one, two, or maybe three judges at first instance. So there is no diversity of views on that side of the bench either — and then any subjective decision about which moral value is correct is rightly open to the charge that it is imposing the values of the judge on us rather than simply interpreting the law.
The problem with this goes further. It is that when we stop thinking about our values and laws, we stop knowing what is and isn’t allowed. This is all too evident with the cancel culture on Twitter, where a small coterie of woke activists will try and loudly shout down and shut down anyone who has the temerity to disagree with them. If it was just the baying of a loud Twitter mob, that would be one thing. However, today the ASA ‘banned’ an advert that looks little different to many other adverts seen on billboards. So the rules have changed, in this case because of one or two complaints. In other words, the views of those two complainants have been superimposed on our values. Even the courts have joined in with this, and with creative interpretations of laws (to find a way to squeeze a moral judgement into its strictures) meaning that statute as printed is only part of the story. And that’s before we turn to the wholescale expurgation of laws.
This is an inherently unstable way to order a society, and paradoxically could result in a diminution of the very rights these progressive activists seek to uphold. Why? Because if the general public feel they are being ignored and their consent to be governed by the law is not being upheld, they are likely to elect MPs who will do something about it. And the offended might have real grounds for complaint then.
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