Chapter 10
1 Cf. section 7.2 and Th. HOBBES, Leviathan, Ch. 21 (pp. 147, 148).
2 Even this may be called into question, but in this case on the basis of a more fundamental analysis than I would here provide. I remark here only, in line with what was said above (chapter 1, note 45), that it is not a priori correct that people may be considered complete units prior to their functioning in a society; perhaps they can, conversely, only be considered to function as they do within a society, in which case such freedoms can a fortiori only exist there. This is an issue that is perhaps not answerable by science or philosophy.
3 Indeed, if there were no difference between freedom of expression with and without the interference of the state, a large part of the present work would lose its import.
4 J. S. MILL, On Liberty, Ch. 1 (p. 223).
5 J. S. MILL, On Liberty, Ch. 1 (p. 224), Ch. 3 (p. 260).
6 That the agent’s own harm is not covered by this principle is an important caveat for Mill (On Liberty, Ch. 1 (pp. 223, 224)).
7 If one considers all the acts that potentially cause harm to others, the extent of the actions that can be allowed is easily shown to be very small (D. DRIPPS, “The Liberal Critique of the Harm Principle”, pp. 9, 10), which would show the need to demarcate a sub-domain of – merely – potentially harmful actions that would supposedly be allowed. This would complicate the matter, as the distinction between ‘harmful’ and ‘potentially harmful’ is in practice often difficult to make.
8 I merely provide this example to illustrate my point. The next chapter will concretize what is said in the present chapter by means of some elaborate examples.
9 But not by everyone. For example, according to Smith’s interpretation of the harm principle (“Is the Harm Principle Illiberal?”, p. 4), the incidence of (physical) harm is a necessary condition to limit freedom but not a sufficient one.
10 This reasoning warrants some caution. Apart from the fact that it does not apply to all cases, notably martyrs willing to suffer or die for their beliefs, a false dilemma (constituting at the same time a slippery slope) – which would ensue if one should argue, as Hobbes does (vide chapter 8, note 283), that a totalitarian state, while undesirable, is still preferable to a state of total freedom, in which one may randomly be killed or hurt – is to be avoided if a middle ground is possible and superior. Presenting such a middle ground is the purpose of this part of the present study.
11 It is unwarranted to define a matter in some way and then draw one’s own conclusions from the result (cf. my remark in section 2.5 with regard to defining ‘rationality’ and chapter 9, note 13). ‘Harm’ is no ambiguously delineated concept and the difficulties that follow from this given must be taken into account.
12 In the latter case, the insult would presumably be vicarious.
13 J. FEINBERG, Harm to Others, pp. 46-49.
14 J. FEINBERG, Harm to Others, p. 47.
15 J. FEINBERG, Harm to Others, pp. 33, 34.
16 J. FEINBERG, Harm to Others, p. 34.
17 J. FEINBERG, Offense to Others, p. 3.
18 J. FEINBERG, Harm to Others, p. 49.
19 In order to evade a rhetorical way of responding to Feinberg’s line of reasoning, I acknowledge that I use the word ‘interest’ here, which both he and I consider a vital element. However, as I mentioned above, for the person under discussion there may be an interest (something may be at stake) a nonbeliever is unable to grasp, in contradistinction to harm (in Feinberg’s sense), the presence of which can (presumably) be grasped by both religious and nonreligious people when they see someone being physically harmed.
20 This does not mean that one cannot debate the qualification. For example, Smith convincingly argues that emotional or psychic distress constitutes harm and opposes, along this line or reasoning, the attempt to differentiate between harm and offense (S. SMITH, “Is the Harm Principle Illiberal?”, p. 16).
21 J. FEINBERG, Harm to Others, p. 50.
22 To anticipate matters somewhat, this issue will prove to be a difficulty in my own alternative as well.
23 Feinberg uses ‘harm’ here in the way he has defined it, but, again, one’s own definition may not be used as a directive. Applied to this case, if he wants to define ‘harm’ as he does, Feinberg must still make it clear why a ‘normal’ person should allow himself to be offended.
24 Whether or not someone else would deem it harm, offense or nonsense, the Christian himself may experience it as something harmful, if ‘harm’ is understood to encompass more than physical harm.
25 Cf. S. SMITH, “Is the Harm Principle Illiberal?”, pp. 20, 25, 38.
26 Otto-Preminger-Institut v. Austria (ECtHR, Application no. 13470/87, 1994).
27 In addition, it may be argued that acts considered by many to be gratuitous are actually a manifestation of an expression (cf. G. LETSAS, “Is there a Right not to be Offended in One’s Religious Beliefs?”, p. 256, who refers in this regard to insulting religious doctrines by burning crosses, writing heretical books and publishing cartoons).
28 I. LEIGH, “Damned if they do, Damned if they don’t: the European Court of Human Rights and the Protection of Religion from Attack”, p. 71; cf. I. CRAM, “The Danish Cartoons, Offensive Expression and Democratic Legitimacy”, p. 327.
29 Handyside v. United Kingdom (ECtHR, Application no. 5493/72, 1976).
30 Otto-Preminger-Institut v. Austria (ECtHR, Application no. 13470/87, 1994).
31 Important exponents include W. MARR (Der Sieg des Judenthums über das Germanenthum) and E. DÜHRING (Die Judenfrage als Frage des Racencharakters und seiner Schädlichkeiten für Völkerexistenz, Sitte und Cultur).
32 To avoid any confusion: no evaluative statements are made here about persecutions of groups of people. It may seem strange that I discuss Jews at all, as it follows from the first part of this study that they should, being ceteris paribus basically rational, be treated equally with other people (and thus not be singled out as a segment). However, if this is taken – in line with what was observed above, and not limiting oneself to religion – to be so broad that nothing may be said that may be taken to be harmful, no room seems left where freedom may be manifested. Neither of these two extremes – unequal treatment and the absence of freedom – seems desirable; I will present an alternative to accommodate both basic equality and freedom below.
33 Feinberg suggests, following an approach similar to mine, “[…] the standard of reasonable avoidability. The easier it is to avoid a particular offense, or to terminate it once it occurs, without inconvenience to oneself, the less serious the offense is”, Offense to Others, p. 32. This seems to provide a viable starting point.
34 The specifics attest to what is characteristic of a particular liberal democratic state, which may, so long as the general restrictions are taken to heart, differ from one case to the next (cf. the example (chapter 6, note 8) of the election of mayors in some but not all liberal democratic states).
35 Laycock avers, in a similar vein, that “People with a deeply held conscientious objection to a law are not similarly