The Moral Muscle

I co-teach a course called Sociology of Freedom with a colleague.   Lecturing about freedom of speech and academic freedom, I have tried to introduce the idea that speech can be regulated either ‘morally’, through the informal sanctions of expressions of approval and disapproval, or ‘legally’ through enforceable policies, rules, regulations, and laws.  ‘Hate crime’ laws, as in the recently enacted Hate Crime and Public Order (Scotland) Act, are a paradigmatic case of adding ‘legal’ on top of ‘moral’ sanctions.  And, I would say, risks supplanting the moral with the legal.  

This distinction relates to the idea that contested speech is better opposed by ‘counter speech’[1] a bid for the better argument, than by the force of legal sanctions.  Not only does one want to be careful about investing too much arbitrary power in the state and its laws, but the realm of contestation through speech is more effective at actually countering bad ideas, and this process serves the general social good by keeping robust public discourse about contested ideas ‘in shape’.  The argument I am making here is closely related to that one, perhaps an elaboration, which I now think I need to make clearer in my lectures on this topic.

Moral sanctions are a necessary part of any society.  More liberal forms of society allow a considerable amount of morals, values, and tastes, to be effectively privatised, allowing to ‘each her/his own’ (or to each group ‘its own’).  But many issues are not so easily privatised, especially when they bear on the provision of public goods, or protected rights.  This is where pressures to transform moral debates, and exchange social sanctions for legal ones, become more acute.  A crucial point here is that liberal societies will contain multiple moral ‘systems’ that will conflict around certain issues (although we should never forget that there is a great deal of shared common-sense morality across humanity).  When one makes the move from moral contestation to legal enforcement, one privileges one of these systems, and marginalises others.  Those who support such transformations will see it simply as the realisation in law of the correct moral position, not as a matter of prejudicially choosing one moral perspective over another.

The underlying point I want to make here, is that the more we call on ‘the law’ (or sometimes just enforceable institutional policies, something sub-legal) to do the work of articulating conflicts and enforcing norms, the more we weaken the moral sphere.  I reiterate the distinction between ‘moralities’ plural, as more-or-less coherent codes of conduct, that are generally aligned with specific groups, institutions and organisations, of which there are generally multiple overlapping versions in any large-scale society, especially liberal ones, versus ‘morality’ as the very necessary process of social contestation over such codes.  Some degree of moral consensus is required to make society work, and as I have said, there is often more of this than we realise.  But, given robust observance of freedom of speech, this can be achieved to a significant degree through the process of morality, often with persisting residues of conflict, without recourse to law or policy. 

Morality is like a muscle that atrophies if it is not exercised.  There are good reasons why we sometimes translate morals into laws.  Large-scale societies with extensive anonymity, made of a web of smaller face-to-face communities in which moral sanctions can operate more effectively (although not always), nonetheless at their larger scales, are unable to reproduce moral order.  The legal order has to compensate.  But if we make a habit of moving as much as we can from the moral to the legal plane, we weaken the very abilities and skills it takes to engage moral contestation, which is a necessary part of reproducing society, and an ability individuals need to develop as full human beings.   There is a risk of building a kind of ‘authoritarianism from below’, in which our sensitivities to moral disagreement, and our ability to question our own moral assumptions, erodes.  As Tocqueville[2] worried, we may over-empower the state to regulate our differences, abandoning our responsibilities to be morally engaged in the natural contestations of society.

This point of view bears on notions of hate crimes.  The points are often well-made, that it is difficult to validate claims to psychological harm, and that hate and negative intentions are more easily attributed than proven, in short, that much of ‘hate crime’ is in the ‘eye of the beholder’.  Beyond this there is the problem of accusations of ‘hate crime’ being used to close down debates over moral disagreements.  There is little disagreement that threats and injuries to bodily well-being, personal property, public safety, etc., need to be countered by enforceable legal sanctions.  But we need to be careful about silencing moral debates about proper behaviour, due respect, etc.  both because public contestation may be a better way to expose and possibly resolve what is at issue, and because this very process of public moral contestation is a counterweight the state’s enforcement of it legal powers.  We need to exercise our capacities for moral contestation, resolving what we can through them, lest we become the prisoners of our own laws and states.

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[1] Howard, J. W. (2019) Free Speech and Hate Speech. Annual Review of Political Science 22: 93-109.

[2] Tocqueville, A. de (1835-40) Democracy in America.  H. C. Mansfield and D. Winthrop (eds, trans), Chicago: University of Chicago Press.