Vague laws let courts dictate public morality

Friday, 21 October 2011 — The Australian

Some recent cases, including the prosecution of News Limited columnist Andrew Bolt, highlight the dangers that flow from the assertion of group rights.

Relying on legislation such as the Commonwealth Racial Discrimination Act and the Victorian Racial and Religious Tolerance Act, groups of individuals have claimed offence at public comments on the basis that the allegedly offensive comments promote intolerance.

In fact, the idea of toleration, famously espoused by John Locke in his 1689 Letter Concerning Toleration, is being turned on its head. In it, Locke sought to distinguish the business of civil government from that of religion.

Written when controversy surrounded the idea that Catholics should be able to practise their religion in Protestant England, or Jews or Muslims enjoy religious freedom in a Christian nation, Locke argued that the state and the church had separate functions. He sought to find a way that people of different religious beliefs could live together.

As summarised by Jonathan Sacks, toleration “aims not so much at truth but at peace. It is a political necessity, not a religious imperative, and it arises when people have lived through the alternative: the war of all against all.” Hence the political separation of faith and power; of church and state: “No person shall be compelled to support any religious worship, but all persons shall be free to profess their religious opinions.”

Today the issue is not only religion. It extends to cultural identity and multiculturalism.

If the new philosopher-judges, such as the court in the Bolt case, subscribe to one view of these matters, they are little different from the theologian-judges before the Lockean settlement.

This is occurring when the political notion that the law should not intrude into areas of private behaviour has been transformed into the moral assertion that a person now has the right to do anything not precluded by law.

The political judgment about the boundaries of the law is now translated into a moral judgment about rights.

What one was permitted to do now becomes what one has the right to do. And having asserted a right, many insist it should be protected by the law.

Hence Locke’s political toleration has been combined with the new moral relativism.

As Sacks cautions, “When political liberalism is combined with moral relativism it reconnects morality and politics, the very thing liberalism was supposed to avoid.”

A moral judgment that liberalism allowed a person to express in the realm of faith and religion, or today culture and identity — for example about religious belief, including the alleged beliefs, customs or practices of other religions — is now swept into the political realm.

In morally relative politics, a right to do something must be protected as a new human right. Not only is the activity now a right, but the people involved are right (or at least as right as anyone else). To say otherwise is intolerant. Such intolerance is discriminatory and should be punished. How the wheel has turned in three centuries.

One of the great achievements of the political liberalism of the 17th and 18th centuries was the idea that the individual is the foundation of the polity. The law treated individuals as its basis. This notion was foundational to liberal democracy.

Hence in the spirit of this development, the 1776 US Declaration of Independence boldly asserted that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

Under this formulation, it is the individual who possesses political rights and whose consent legitimates government. It was a rejection of the idea that rights subsisted in classes of people, whether determined by birth, hierarchy or membership of a particular group. It is central to the liberal democratic experiment.

Increasingly, however, rights are now being asserted on behalf of groups. A claim is made for example, that the expression of a moral judgment about the beliefs, statements or actions of another group should be unlawful because it is offensive to members of the group or that it is likely to insult that group.

Whereas the laws of defamation protect the individual against libel and slander, it is now claimed that moral judgments or observations about a group should be unlawful and punishable. This is a significant shift.

The main fault lies with the parliaments that have created vague laws from abstract principles about which judges can be tempted to conclusively determine public morality on issues such as speech and thought in a multicultural society.

Laws that enable groups, rather than individuals, to assert rights should be repealed before we head any further down this dangerous path.