Tempering Freedom through Freedom

(The following essay is a modified version of a speech the author delivered at an interfaith seminar held on 22 June, 2013 in the UK)

In a poetic inversion of Justice Oliver Wendell Holmes’ paradigm with respect to the life of the law (which, Holmes believed had been experience rather than logic), Professor Richard Parker of Harvard Law School states that, “The life of the law has not been logic, it has been imagination.” Indeed, imagination represents that emotive force behind the cognitive experience that shapes the contours of our thoughts and words. Our imagination, thoughts and language thereby form part of an interdependent, self-sustaining circle, wherein each faculty is the driver and the engine for the other. This “Golden Triangle of Speech,” manifested through our imagination, thoughts and language – portrays language at the pinnacle – since it is language that forms a powerful communicative force breathing life into the latent expressions of imagination and thoughts.

Language or speech has thus been long regarded as a sacred freedom, and in so far as it represents the only concrete bridge to our thoughts and imagination, it is to some extent indispensable as a rhetorical tool. Yet, as with all extremities of loftiness, the utility of language has often been challenged as being both a positive and a negative ideological force. The pages of history are replete with this enigma of semantics – as, by way of one example, just as mysteriously as the use of the word “inyenzi” (which means cockroaches) to describe the Tutsis was manipulated to systemise the Rwandan genocide, equally Henry Morgenthau Sr.’s (the US Ambassador to the Ottoman Empire during WWI) cries for “race murder” in an effort to alert the US Government regarding the massacre of Armenians by the Ottomans failed to prevent the Armenian genocide.

History is thereby reminiscent of Thomas Paine’s prodigious words, that, “The greatest tyrannies are always perpetrated in the noblest causes,” – and while language remains the key to the unexplored worlds of our thoughts and mind, the limitations of language must be appreciated as well. In fact, the degree of nobility that the freedom of speech now commands undermines the greater parallel nobilities of human dignity and civic virtue.  Yet, as history also shows, restricting or criminalising acts of freedom ultimately prove counter productive. The draconian laws on blasphemy in some Muslim-majority countries like Pakistan that have empowered extremists to an intolerable extent are just one case in point. It was the thrust of this socio-religious philosophy that compelled the Organisation of the Islamic Conference to abandon its call for an international crime on blasphemy in the United Nations earlier this year.

Freedom may only be tempered by freedom. While each faculty in the “Golden Triangle of Speech” is fundamental to the existence of the triangle, language occupies an exalted station. It has been afforded this position even though language relies on thoughts and imagination for its subsistence in as much as thoughts and imagination are rendered illusive without language. However, notwithstanding this natural parity between these faculties, the freedom of expression whereby thoughts and imagination are realised remains explicitly or implicitly a higher freedom. The freedom of thought and conscience while being as vital to the realisation of expression as language, has been relegated as the underdog of freedoms. Paradoxically, despite it’s lack of lustre in the neoliberal world celebrating civil and political liberties, the freedom of thought and conscience presents a powerful moral tool for tempering free speech. Our thoughts are an expression of our innate sense of morality, they signify our personal moral code that governs and is unique to our existence. Our heightened sense of conscience forms the cornerstone of this moral code. The phenomenon of thoughts being translated into words is now so intuitive to nature that the virtue of guiding thoughts through conscience has become obscured and is considered frivolous.

A reflection of this approach maybe found in what Professor Joseph Carens of the University of Toronto argues that, “The question is whether there is sometimes a moral duty not to say something that one has a legal right to say…” The main debate as Carens goes on to explain is, “not about legal limits on speech but about the moral constraints, if any, on how people exercise their rights.” A similar approach has been outlined by David Novak, professor of religious studies and philosophy and author of the Jewish Social Contract, who refers to it as “retroactive consequentialist reasoning” i.e. the process of questioning whether the intended speech is going to accomplish anything positive, and if not, it would be pragmatic to avoid it.

Echoes of this line of reasoning are also reflected in the legitimate restrictions placed on free speech by various international law instruments, including inter alia, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Article 10 of the latter provides e.g. that:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

There appears to be a disjunct within the legal fabric with the elevation of the freedom of speech to an almost sacred stature on the one hand and calling for the placement of legitimate restrictions on speech on the other. The disjunct is created not by the simultaneous existence of these two frameworks, but by the failure to juxtapose speech in the public domain against these standards where appropriate and necessary. If speech is to be considered impenetrable to scrutiny, then logically the relevant provisions circumscribing certain speech in international and municipal law should be removed. However, it appears to be the case that speech has already acquired such impenetrability without the removal of these restrictions, which continue to be referred to as either inapplicable, obscure, too rigid, irrelevant or are ignored entirely. The continued existence of these competing polarities not only undermines the international law framework, it paradoxically undermines the principles of free speech as well.

Thus, the irreconcilability of the rights versus obligations approach within the free speech paradigm strengthens the argument in favour of a moral view that transcends legal modalities. This transcendence from the legal to the moral presents itself as our internal moralism, our inner voice tempered by our conscience. This subtle temperance of our thoughts through conscience before they are translated into words provides a mechanism whereby the freedom of speech may be tempered through the exercise of another, equally important freedom. Liberty ought to herald the promise of freedom, not the exercise of sub-standard rights that make a travesty of human dignity. The virtues that liberty holds so dear are in fact married to the notion of responsible freedom epitomised by our sense of internal moralism. Liberty in the lack of virtue renders meaningless scores of age-old proscriptions (e.g. “Thou shall not kill”) held equally dear in the free world. Freedom’s journey must therefore be concomitant with virtue, as John Adams once proclaimed, “Virtue is to liberty, what soul is to the body.”

This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *