This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Richard Ekins (Oxford) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

Some features of liberalism in a censorious age 

The nominal promise of liberalism is political fairness and, relatedly, social peace, in which persons with different religious, moral, political, and philosophical commitments will be free to live as they please. The promise is illusory insofar as one cannot coherently exclude questions about the good from public life, including from (deliberation about) the exercise of public power. And in fact, we do not live in a golden age of freedom of conscience or freedom of speech. On the contrary, we live in an increasingly censorious age, as Jonathan Sumption puts it,[1] in which uniformity of thought or opinion is sought by way of abuse of dissenters in the press or social media, or by direct public (legal) action. This short paper reflects on some developments within liberalism, understood loosely as a tradition of political thought and practice, which may help explain the censorious temper of our times and the way in which religion and hate speech are understood.

In one influential form, political liberalism aims to bracket questions about what is truly worth acting for – questions that involve controversial substantive commitments – and instead to ground law and government on thin propositions that are fair to all comers. For Ronald Dworkin, the fundamental principle of political morality is that government should show equal concern and respect to all persons. This requirement, he says, rules out public actions that entail or presuppose the judgement that some way of life is vicious or debased and/or that some moral choices are truly better than others. Public actions of this kind, Dworkin maintains, fail to show equal concern and respect.  

This line of argument forms a main element in the jurisprudence of contempt,[2] in which a court or jurist reasons that to act on moral grounds is to act unfairly, in a way that is incompatible with the respect for persons and the freedom that equality demands they enjoy. Judicial review of legislation is justified, on this view, in order to police majoritarian legislatures, who are otherwise tempted to act unfairly, double-counting the preferences of some citizens about how others are to live, and/or reducing others to the status of second-class citizens by rejecting their commitments. The argument is unpersuasive because one cannot avoid the need for moral judgement in lawmaking and governing and to act for what one sincerely takes to be the good, including the good of the person one limits or punishes, in no way involves contempt for those who think otherwise.[3] Further, the argument wrongly frames the reasons on which a legislature acts as preferences, which have a place in collective action only insofar as fairness permits. The aim is to disbar political unfairness; the effect, even if the proscription were applied evenly,[4] would be to prevent justice.  

What is important to note, I think, is (a) the reduction of reasons to preferences and (b) the claim that in acting on (controversial) moral reasons one displays contempt for others. The upshot is that political liberalism is primed to see moral action as an insult or an unfair abuse of process. It is no surprise then that the moral significance of intention is often lost from view, with actions sometimes branded discrimination or harassment regardless of the intentions on which the person acted, per the premise that our actions are often sub-rational with real motivations hidden from us. [5] It is thus easy to frame those with whom one disagrees, or fears, as irrational and in need of correction. 

If political liberalism has often been, in form at least, an argument for bracketing the good, this is not the form in which liberalism has developed. The earlier argument was always somewhat defensive, aiming to disarm the political authorities from acting for the common good and narrowing the scope of legitimate government to what can be said, somehow, to be fair on intermediate grounds. What has emerged, however, is a more comprehensive liberalism, which sees autonomy as the basic good and limits on autonomy as obvious injustices. More precisely, the ambition of comprehensive liberalism is to unchain individuals from their circumstances, from oppression, and thus to maximise autonomy. Sexual autonomy looms large because cultural, moral and religious mores have always imposed restrictions on sexual acts, restrictions that liberalism assumes to be unjust save to the extent that they can be rationalised as somehow in service to autonomy. On this view, the liberation of sexual acts from moral standards other than consent, which is required by autonomy itself, is a very great good, which should be maintained and advanced. [6] This is a substantive commitment, an account of the good, which is taken to ground legitimate government. There is a family resemblance to the political liberalism of old insofar as the only, or main, commitment is a thin one, prioritising autonomy without giving other human goods their proper due.  

Interestingly, the moral anthropology in play seems to understand the autonomous person both to be radically free, limited only by the demand to respect the autonomy of others, and yet also to be highly dependent on the goodwill and affirmation of others, and thus exposed to (psychological and social) harm by their disapproval or disagreement. That is, the unwillingness of others to recognise the goodness of one’s autonomous self-expression, or their willingness (even in principle if not often in practice) to question or challenge one’s actions, is taken to be incompatible with equality and thus to be an insult which no autonomous person should have to endure. Strictly, this scheme must collapse into incoherence unless a hierarchy of autonomous action is deployed on grounds other than autonomy. [7] In practice, this seems to be the case, with sexual autonomy enjoying pride of place over autonomy in relation to religious belief and practice or in relation to parenting. [8]

Note that the argument for maximising autonomy has an equivocal (or complex) foundation. In some contexts, the point is that one should be free to do as one chooses, with no reasonable limitation imposed on that freedom and one’s self-direction something to be honoured rather than limited. In other contexts, the point is that one could do no other, without compromising one’s psychological and moral integrity, such that legal – and social – freedom (and support) to do as one is compelled is a moral requirement. One sees both foundations in play in relation to the transgenderism controversy, with some arguing that there is no reasonable ground for limiting self-expression, including gender self-identification, and others (or the same people in a second breath) arguing that transition to a new gender is compelled by the (biological or psychological) circumstances in which one finds oneself, such that one could do no other.  

The controversy between some traditional feminists, committed to securing the freedom of women and girls to live well, and some transgender activists, committed to securing the freedom of, say, biological males to live – and to be recognised by others – as women, is in one sense an intra-liberal controversy, pitting different assertions of autonomy against one another. In another sense, however, it might be better conceived to be an argument about justice and the common good, in which each party places different stress on the predicament of a different set of persons, and in which the moral vocabulary is at times unduly truncated to autonomy alone. There is a controversy about transgenderism in part because of the thinness of autonomy as a foundation. Equality is a demanding ideal, but its demands are imprecise insofar as one cannot see the full range of goods in play or the relevant grounds of distinction, if any, between different types of case.  

It is of course true and important that in some contexts persons should be free to choose, say, to pursue this line of work, to marry that person, or to settle in a different part of their country. And it is also true that in some contexts persons cannot reasonably choose not to undertake some course of action, for their conscience compels them to act thus and/or their understanding of the world (including the will of God) leaves them with no options amongst which to choose. In some (not all) circumstances, those demands of conscience warrant legal protection. Comprehensive liberalism is grappling with these truths, but with too limited a set of moral distinctions, with an atrophied account of human goods, and thus with an unsound moral psychology.  

Adrian Vermeule takes the view that liberalism is not a political tradition, or not only a political tradition, but is rather one of the world’s great religions. One can see his point. The liberalism that has emerged as the dominant philosophy of the Anglo-American elite does have something of this character, providing a comprehensive account of the nature of persons and our ends, complete with rituals to observe, and propositions of faith to recite and to pass down to the next generation. [9] Vermeule’s thesis may be a little overstated, but only a little. What he highlights, I think, is that liberalism is now often a rival to religious faith, making fundamental claims about the human condition, the arc of history, and the responsibilities each person has to bring about the republic of heaven. [10] This is a faith that imagines itself to be elevating the human spirit, but which seems to me to substitute hubris for pietas and to make no provision for failure (it is a religion for the strong, for wealthy, healthy adults free from dependents) or for repentance. It is a Christian heresy, reshaping (warping) elements of the Christian faith, while abandoning its foundations. [11]

Liberalism imagines a community united by consent and by a common scheme of principle, in which maximal autonomy is the end and affirmation of the autonomous choices of others is the means. This is neither coherent nor stable, as the transgender controversy confirms. But it does help explain public hostility, on the part of social and political elites, to those who dissent, viz. those who adhere to other faiths and/or refuse to affirm autonomous choices that they think are wrongful. Liberalism primes its adherents to misunderstand religious or other dissenting action as contemptuous of others, failing to perceive the significance of the intentions on which dissenters act, and wrongly running together person and action in a way that misrepresents disagreement as hatred. On this view, dissent from liberal principles is a kind of heresy, which needs to be purged for the good of all, or a kind of treason, in which the dissenters are imagined to be acting in breach of the fundamental grounds of our social and political compact. One sees this perspective in play in the hysterical way in which some liberal commentators respond to (occasional) political setbacks. If liberalism is a false faith, exposing its contradictions is unlikely to change the way in which dissenters are treated, but it may be a necessary step in framing a response.

[1] See his first 2019 Reith lecture, “Law’s Expanding Empire”, published subsequently as Trials of the State. Jonathan Sumption (Lord Sumption) is a retired Justice of the United Kingdom Supreme Court.

[2] The term is John Finnis’s. See further my “Equal Protection and Social Meaning” (2012) 57 AJJ 21.

[3] Limiting oneself by reference to some moral standard, or judging oneself to have acted wrongly, scarcely involves contempt for self; on the contrary, contempt for self is likely to manifest in a lack of self-discipline.

[4] It is not.

[5] See further Paul Yowell’s recent paper on the Equality Act 2010, entitled The Future of Equality.

[6] Cf. recent feminist scholarship including Louise Perry, The Case Against the Sexual Revolution.

[7] And of course if there are goods other than autonomy, as there must be, the whole scheme falls apart.

[8] One could widen the point: in many states, no serious efforts are made to limit pornography (or prostitution) despite the consequences for children and for people trafficking. The ordering of goods is clear.

[9] Perhaps “Western elite” would be more accurate? The United States certainly seems to be the vanguard.

[10] In Philip Pullman’s entertaining trilogy, His Dark Materials, which is in a way a profession of liberal faith, the aim is to overthrow the oppressive kingdom of heaven and establish in its place the republic of heaven.

[11] See further the final chapter of Tom Holland’s excellent book, Dominion: The Making of the Western Mind, entitled “Woke”. Holland, to my mind, understates the extent to which this new current in political and social thought is discontinuous with the Christianity from which it emerges, but I think he is right to note the connection. As many others have noted, our new public philosophy seems to have retained the idea of original sin, but has clearly abandoned forgiveness, mercy and restoration.  

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