“It’s a thin line between love and hate”, the Pretenders sang in 1983, but it’s a line that in recent decades legislators and academics have been eager to draw. Indeed, western democracies as well as the European Court of Human Rights have become so concerned about hate speech that they have sought not only to criminalise its utterance, but also extend its sanction from the public to the private domain. The novelty of policing speech that “implies a high degree of animosity” represents a remarkable extension of the common law to criminalise an all too human emotion.

Policing what we do with words requires the common law to interpret and adjudicate upon performative speech acts. Such acts, the language philosopher J. L. Austin demonstrated, could not only misfire, they might also produce “consequences which are unintended”. This notwithstanding and developing speech act theory in a way Austin would have considered “unsound”, the UK College of Policing considers hate “not caused by the speech, but the speech itself constitutes the harm”.

In this context, Ogden Nash would find himself in trouble with the constabulary for uttering, “hate is the verb, that to me is superb, and love just a drug on the mart. For any kiddie from school, can love like a fool, but hating, my boy, is an art.” It’s an art, however, that a new class of speech managers want to eradicate.

The view that certain speech acts require sanitising first arose amongst critical theorists and human rights lawyers. How has their preoccupation about how we do things with words led to laws that not only control what we say and think, but also, how we feel? What more precisely does it mean to hate, is it intrinsically wrong and, more pertinently, eradicable through speech management?

Religious hatred and the confessional warfare it incited stimulated the emergence of the modern state

The Bible is ambivalent. Christianity hated sin but not the sinner. Christ, if Luke reported him correctly, was guilty of “a precrime hate incident” when he claimed that “if any man come to me and hate not his father and his mother, and his wife and his children, and his brethren and his sisters, yes and his own life also, he cannot be my disciple.” Aquinas, who codified the Catholic perspective on sin and virtue, considered hatred a vice, but not a capital one. It arises, as Augustine had earlier disclosed, from the passions, most notably anger. Even a Christian, Augustine wrote, could find anger solidifying into hatred when confronted by a hostile enemy.

At the Reformation, both protestant reformers and their counter reformation opponents solidified their hatred of each other. Significantly, Calvin believed that “God distinguishes between the righteous and the unrighteous, and in such a way as shows that he is not an idle spectator; for he is said to approve the righteous, and to hate the wicked.”

In the centuries of reformation and reaction, religious hatred and the confessional warfare it incited, not only devastated European Christendom, but it also stimulated the emergence of the modern state. Hatred, in fact, served as a resource for critically productive animosity. The long history of Calvinism in Europe and Puritan nonconformity in England, evinced both a jealousy of the Establishment and a fondness for sectarian controversy that subverted, according to Mathew Arnold, any “ideal of complete, harmonious, human perfection”. Puritan controversialists, like John Milton, mounted polemical defences of freedom of speech and publication, including what would now be considered hate speech, directed at more conservative and Catholic opponents.

In the eighteenth century, Goethe, following Milton’s example, thought “the poet must know how to hate.” William Hazlitt captured the character of this anti-establishment style and the creative dynamism it unleashed in his seminal essay On the Pleasure of Hating. “Hate”, Hazlitt wrote, “like a quantity of superfluous bile upon the stomach wants an object to let it out upon”. “Does the love of virtue”, he asked rhetorically, “denote any wish to discover or amend our own faults?” “No”, he responded, “but it atones for an obstinate adherence to our own vices by the most virulent intolerance to human frailties. This principle is of a most universal application”.

Hazlitt, like Augustine before him, considered hatred a passion intrinsic to human nature. The more we examine human psychology the more we realise that “we are made up of antipathies.” Without something to hate, Hazlitt opined, “we should lose the very spring of thought and action. Life would turn into a stagnant pool were it not ruffled by the jarring interests, the unruly passions, of men.”

Without something contemptible to react against, there could be neither progress nor productivity. Hatred and the problem of speech deemed hateful captures what moral philosophers came to see as a conflict between moral perspectives: admirable from one point of view, deplorable from another. Interestingly, both religious fanatics and our contemporary speech managers often confuse the pleasure of hating hate speech with a form of virtue.

The divergence between sin and crime in the West since the Enlightenment has been a notable political achievement

Yet, requiring the legislator to sanction certain speech acts because their audience might find their perlocutionary impact undesirable draws the courts into an area that until very recently the law sought to avoid. Indeed, John Wolfenden in his landmark report on Homosexual Offences and Prostitution (1957), wrote that “a lot of behaviour many people find morally reprehensible are not crimes.” His committee advised, and parliament subsequently legislated, that moral offence needed to be distinguished from crime. There “must”, Wolfenden maintained, “remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.

Our legislators and educators evidently need reminding that the rule of law, over time, distinguished itself from sin and the imposition of a single moral or ideological code. It is this distinction between criminal law and sin that hate speech legislation, and the cancel culture it has facilitated, seeks to erase. How has this happened?

Sin and the Modern State

The history of the modern democratic state demonstrates that the coincidence between law and morality could, in certain circumstances, be very small. In a theocracy, for example, law is religious law, every crime is recognised as a sin and every sin proscribed as a crime. This is currently the case in contemporary Iran and Saudi Arabia, but in the West the divergence between sin and crime since the Enlightenment has been a notable political achievement. Here the modern state came to be understood as an association whose members subscribe to a variety of religious and moral beliefs, and yet live under one, common, law. Establishing this distinction between crime and sin was one of the outstanding achievements of secular, western democracies.

However, it is not a characteristic unique to these societies, nor is it an absolutely secure distinction.

Even in the UK and the United States, the separation was only slowly achieved. It required two circumstances. First, the variety of moral and religious opinion which appeared in these societies would have destroyed any vestige of social cohesion if the government had imposed a single moral or speech code by law. Secondly, the moral beliefs of European societies reflected those which had become attached to the Christian religion and Christianity recognised a distinction between sin and crime, between what must be avoided if salvation is to be enjoyed and what might be legitimately demanded by Caesar and the civil law.

At the same time, modern European and early American societies have also shown that they were not immune from relapse. Calvin’s Geneva, the millenarian sectaries who dominated Barebones’ brief parliament in England in 1653, and their brethren in New England a few decades later, sought to impose moral rule by a sanctified, fanatical elect where crime and sin coincided. But neither here nor anywhere else in the increasingly secular west did these endeavours enjoy durable success.

The history of modern morality did not end with the displacement of feudal loyalty by the morality of individualism

Yet, the absence of any detailed coincidence between particular beliefs about right and wrong and what civil laws in western societies enjoin and forbid does not mean there was no connection between morality and politics. The constitutions of governments, their decisions and actions, and the laws they promulgate have never been immune from judgments of approval and disapproval. There was never a time when political argument did not outline appropriate moral and political conduct and therefore whether government should or should not be active in certain manners and matters. This was so even where secular governments did not require the direct enforcement of what was believed appropriate for civilised human conduct.

In other words, political judgement, even in pluralist democracies, which recognise a distinction between sin and crime, invariably evinces some moral viewpoint. What, then, is the moral context to which restrictions on speech of a religious, sexual, racial or transgendered nature may be referred to make them intelligible?

Modernity and Public Morality

To understand our current difficulty with free speech we need to recall how public morality evolved in western Europe. The English political philosopher Michael Oakeshott observed that since the seventeenth century three moral dispositions have shaped western self-understanding. He termed these: the morality of communal ties; the morality of individuality; and the morality of collectivism. They arose chronologically and contingently. The oldest, the morality of communal ties, reflected a pre-modern community where custom, office and hereditary status prevailed. This feudal relic enjoys only a fragmentary existence in the present, but even where modern cosmopolitan conditions are entirely adverse, it survives as a form of nostalgic yearning.

By contrast, the morality of individuality, or the disposition to make choices for oneself, as the conduct proper to a self-determining character first emerged at the Renaissance. Choice working on chance over a period of centuries produced circumstances favourable to this distinctively modern outlook. It gave rise to a new idiom of conduct and character where the individual claimed moral sovereignty over himself and lived a life governed by choice. The new idiom came to treat human societies as associations of individuals. Philosophers from Hobbes and Locke to Montesquieu, Adam Smith and Kant clarified its preconditions and principles. These civil associations revealed an intimate connection between the institution of private property, freedom of speech and the enjoyment of individuality along with the desire to explore their possibilities. Whereas in communal societies, private property was virtually unknown; in those where individuality became the image of moral conduct, property, liberty and personal responsibility assumed the utmost consequence.

Such individualism has little interest in curtailing speech acts unless they are illocutionary utterances inciting a crowd to criminality or physical violence. Prior to recent legislation on hate speech, this was the conventional view held by common lawyers, liberal thinkers and the general public. Even in Wolfenden’s day, it was an “essential element in the common law understanding of the public good that there should be private personal responsibility. The more you legislated the more you impaired and diminished the role of personal responsibility”.

Unfortunately, the history of modern morality did not end with the displacement of feudal loyalty by the morality of individualism. Modern industrial society bred not a single moral character, but two opposed ones: that of the individual; and that of the man or woman who, for various reasons, could not be an individual. The anti-individual was not the relic of a communal past, but a distinctly modern character, the product of the same dissolution of traditional pre-modern ties that generated the individual.

The righteous today, unlike their sectarian precursors, are the victims of historic injustice

From the nineteenth century, the masses of the industrial age not only looked to the state for support, they, or their advocates, also generated a morality appropriate to their character and condition. Moreover, as the capacity and power of the modern state grew, some of its most salient political inventions were designed to make choices for those unable or incapable of making them. Dictatorship in the name of the people, the welfare state and rule by a cosmopolitan technocratic elite are recent examples of this propensity. Mass man preferred security to liberty, solidarity to enterprise and equality to self-determination. It is morality in this collectivist version that felt the need to curtail harmful speech and, by extension, harmful thought. Collectivist morality deals with human beings as featureless resources of an enterprise. It manages, disallows and polices speech it considers harmful to a population composed of oppressed minorities. At the same time, it condones speech acts that undermines the morality of individuality, liberty, and private responsibility. How so?

Sanitising speech and the collectivist vision

The collectivist mind manages. It allocates rewards and benefits according to an abstract formula that establishes the conditions for perfect equality and perfect solidarity. In its twentieth century, productivist manifestation, it assumed the management of the means production and the equal distribution of resources. In its recent ethical formulation, it revives an earlier millenarian vision of a society divided between the just and the reprobate. The righteous today, unlike their sectarian precursors, are the victims of historic injustice, whether through colonialism, biology or capitalist democracy’s inegalitarian structures.

The guilty, in this Manichean moral melodrama, are the unreconstructed, reprobate, white majority, who have unjustly or unconsciously victimised those minorities. To realise the latest collectivist vision these suffering minorities must be cherished and compensated for their historic oppression. This not only requires meeting abstract, bureaucratically determined, targets for inclusivity, but also reducing the vocabulary through which dissent might express itself.

In curtailing harmful speech, the movement to create perfect social order also seeks to transform the common law into a rationalist instrument detecting and criminalising sinful utterance, as well as behaviour. Lord Chief Justice Goddard worried, in the 1950s, that, “If you legislate quantitatively a man’s private personal responsibility which you bring within the realm of the criminal law, to that precise extent, quantitatively, you decrease the area of his personal responsibility.” This is precisely what hate speech legislation intends. It is not the illocution or speech act itself, but the perlocutory response of an audience of soi disant victims that now determines an offence.

Cancelling words ultimately cancels thoughts that the collective mind finds uncomfortable

In this manner a worldview can be imposed upon a population as it is schooled in suitably sanitised locutions. To achieve speech compliance, correct utterance assumes an increasingly acronymic and euphemistic character. It evacuates meaning by imposing a seemingly neutral, social scientific vocabulary. Modern psychological warfare provides the context for this distortion of speech reference and meaning. During the Vietnam war, for example, the US military faced with the embarrassing problem of returning “body bags” of dead serviceman to their families renamed the bags “human remains pouches” before reducing them to the impersonal and euphemistic acronym- HRP. In a similar fashion, ethnic categories, Afro-Caribbean, Black or Asian, are in the process of being acronymically transformed into neutral verbal shorthand like BAME or POC. Words that allude to a specific minority characteristic or disposition will soon become prima facie evidence of pre crime hate.

Abbreviation, euphony and euphemism over time alter and narrow meaning. Cancelling words ultimately cancels thoughts that the collective mind finds uncomfortable. Minimising speech in this way not only provides a medium of communication for the mental habits proper to the devotees of a collectivist morality, but it also eventually makes other modes of thought impossible and, in so far as thought depends on words, unthinkable. Such criminalisation of language reduces its speakers to a condition of mute compliance enabling yet further administration by an elite class of speech and thought managers.