Introduction to philosophy An_anti-liberal_defence_of_free_speech.doc

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An anti-liberal defence of free speech:Foundations of democracy in the Western philosophical canon© Eric Heinze, QMUL, 2018,[email protected].This is a preliminary draft only.Please do not cite,reproduce, or circulate without express written permission, aside from the internal purposes of theOxfordHandbook of Law and Humanities(M Del Mar, B Meyler, S Stern, eds.)Abstract.Western democracies determine the extent and limits of free expression largely within rights-based frameworks.As captured by Mill’s classically liberal ‘harm principle’, expression is permitted exceptinsofar as legislatures and courts deem it to cause some unacceptable harm.Through a humanities-basedapproach, however, we can identify distinctly democratic principles very different from the standard liberalprinciples.Beginning in ancient Athens, we discover that questions of legal legitimacy invariably becomequestions of civic participation; and civic participation is nothing if not expression.It is no exaggeration tosuggest that Western political philosophy altogether begins with that observation: Plato’sCritopresents theWest’s first systematic enquiry into the question of legal legitimacy – that is, the question of when the lawcan bind us through moral rightness, beyond sheer physical coercion.The law binds us precisely to theextent of the freedom we have enjoyed to disagree with it.Keywords:Aristotle, democracy,Dworkin, free expression, Habermas, liberalism, Mill, Plato, Rousseau1.Introduction‘The freedom which we enjoy in our government extends also to our ordinary life’1,boasts Pericles in the Fifth Century BCE, as if anticipating the famous ‘harm principle’ overtwo millennia before Mill2: ‘we do not feel called upon to be angry with our neighbour fordoing what he likes’.3Several decades after Pericles, Plato too will marvel that citizens of ademocracy are ‘free’, their society ‘full of freedom and freedom of speech’.4Yet with adifference: Plato is not bragging about democracy, but mocking it, basking in the scorn hepours upon ‘the democratic man’:And so [the democratic man] lives on, yielding day by day to the desire athand.Sometimes he drinks heavily while listening to the flute; at other times, hedrinks only water and is on a diet; sometimes he goes in for physical training; atother times, he’s idle and neglects everything; and sometimes he even occupies1Thucydides,The Peloponnesian War2:37 (New York: Modern Library, 1982, trans. T.E. Wick) 108.Commonly believedto be Thucydides’ reconstruction rather than a transcript, Pericles’ famous oration has nevertheless long been thought tocapture Athenian democratic thinking.2J.S. Mill,On Liberty and Other Essays(Oxford: Oxford University Press, 1991, ed. J. Gray) 14.

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