Posted on by Marc O. DeGirolami

Smith on Liberalism and Hate Speech

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 Steven D. Smith (University of San Diego School of Law) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

What is the relation between liberalism and the regulation of–or, conversely, the legal protection of–“hate speech”? And what if anything does the problem of hate speech tell us about liberalism?

I.

Hate speech is pretty much by definition vicious and hurtful, and a legal regime without “liberal” aspirations might have no prima facie reason to respect or protect it (assuming that it could be adequately defined). Conversely, a liberal government might extend constitutional protection to hate speech–for pragmatic reasons (slippery slope concerns, for example, or worries about overbreadth) but also for more principled reasons. More specifically, liberalism implies that people should have the freedom to do and say things that are objectionable or wrongful so long as they cause no harm to others.

“Harm,” to be sure, turns out to be a complicated–and often conclusory or question-begging–notion. Suppose Puritan is profoundly disturbed by his neighbor Pru’s practice of watching prurient movies in her basement. Puritan’s emotional distress may be real enough. And emotional distress is unpleasant; in other contexts it can constitute a compensable injury. But under liberalism, Puritan’s emotional distress in this context will not count as “harm”–or at least not as the cognizable harm that can justify a restriction on Pru’s liberty. Why not? We will say that Pru’s practice cannot be restricted because it causes no harm, but what we mean is that Puritan’s very real pain cannot count as harm here because (we know in advance) Pru’s liberty should not be restricted. We will express this foreordained conclusion by saying that Puritan’s “offense” or “hurt feelings” do not amount to cognizable “harm.”

But offense and hurt feelings are exactly the kinds of harm–or rather of non-harmful “hurts”–produced by hate speech (unless, that is, such speech goes beyond mere hatefulness by, for example, inciting listeners to violence). Or so it may seem. And on this view, there is no justification for regulating people’s ability to express themselves hatefully, no matter how worthless such speech may be.

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Pin on Hate Speech on the Web

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 Andrea Pin (Padua) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone . . . You claim there are problems among us that you need to solve.  You use this claim as an excuse to invade our precincts.  Many of these problems don’t exist.  Where there are real conflicts, where there are wrongs, we will identify them and address them by our means.  We are forming our own Social Contract . . . We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity . . . Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

This is an excerpt from A Declaration of Independence of the Cyberspace.  The visionary thinker John P. Barlow proclaimed it in 1996 in Davos, Switzerland – the Sinai of globalization.  Barlow’s pride for what the cyberworld would become in the future was largely misplaced.  As many soon acknowledged, Barlow’s prophecy, that from online anarchy would almost spontaneously rise an order based on freedom, was wrong.  The cyberworld, after all, is just as much a part of our world as we are a part of it. 

Philosopher Luciano Floridi suggested we now live an onlife existence, in flux between the physical and virtual world.  Cyberspace cannot claim an independent life any more than we can claim our independence from it.  Our reputation, social relations, and political sphere take shape in an environment where cyberspace occupies a special place.  AI technologies affect how we perceive ourselves and others.

The issue is whether there is a sufficient public philosophy – or at least an intellectual framework within which our onlife sustains itself. As a recent book noted, 

“The medieval world had its imago dei, its feudal agrarian patterns, its reverence for the crown, and its orientation toward the soaring heights of the cathedral spire.  The age of reason had its cogito ergo sumand its quest for new horizons–and, with it, new assertions of agency within both individual and societal notions of destiny.  The age of AI has yet to define its organizing principles, its moral concepts, or its sense of aspirations and limitations.”[1]

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Madera on Religious Hate Speech in Europe

This past July, the Center co-hosted a conference with LUMSA University 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 Adelaide Madera (University of Messina) submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

In modern multicultural societies, various groups claim visibility in the public space and an equal opportunity to manifest their views, values, and convictions, even of a religious nature. In Europe, since the release of Salman Rushdie’s Satanic Verses, further events, such as the Danish cartoons controversy and the Charlie Hebdo killings, have given rise to increasing skepticism and prejudice against religious minorities and emphasized the risk of a clash between religious freedom and freedom of expression. The crucial questions are whether and to what degree freedom of expression can be subject to restrictions to protect the religious feelings of the faithful and what are frontiers of freedom of expression. Hate speech could be entangled with freedom of religious expression, which could degenerate into a dangerous religious hate speech, aimed at offending those who do not share analogous convictions. However, the difficulty of defining hate speech has given rise to a proliferation of claims of hate speech. The risk is the rise of a culture of offence where everyone can claim a right not to be offended.

Indeed, the construction of a hierarchy between the two liberties concerned would provoke a constitutional conundrum as both concern fundamental rights. So a careful case-by-case balance is required, which takes into careful consideration all the circumstances of the case. Thus, not only should the content of the message be assessed, but also the expressive waysused. Furthermore, who speaks and who the audience is can make a relevant difference.

The search for such a balance acts as a stress test for domestic legal frameworks and emphasizes their inadequacy. At the moment, the notion of hate speech is extremely fluid in Europe, due to the lack of a uniform legislative approach. Although in many European countries there is a progressive dismantling of traditional blasphemy laws, which were based on a privileged link between the State and the predominant religion, various States are experiencing some difficulties abandoning regressive patterns aimed at highly protecting religion—preventing an offence against divinity—and moving toward models of protection of religious adherents (hate speech).

In Recommendation 1805 (2007), the European Parliamentary Assembly urged national law and practice to “permit open debate on matters relating to religion and beliefs” and not “privilege a particular religion in this respect, which would be incompatible with Articles 10 and 14 of the Convention,” and to “penalise statements that call for a person or a group of persons to be subjected to hatred, discrimination or violence on the grounds of their religion as on any other grounds.” Finally, a decriminalization of blasphemy is solicited. Despite these guidelines, states have struck disparate balances between free speech and freedom of religion, due to their various historical, political, and social background, exacerbating the political debate and giving rise to litigation.

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Lugato on the International Legal Framework for Hate Speech and Its Limits

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 Monica Lugato (LUMSA), who co-organized the conference with us, submitted the following paper for Workshop 3, on hate speech, which we are delighted to publish here:

1. Is ‘hate speech’ legitimately to be excluded from the scope of freedom of expression?Or is it protected speech? How does its admissibility or inadmissibility relate to liberalism? My short answer is that the legal regulation of hate speech is not incompatible with liberalism’s basic assumption about the priority of individual rights and the need to shield them from State interferences; provided an agreement on what ‘hate speech’ is; and provided that limitations to freedom of expression remain the exception to the fundamental right to freedom of expression. The international legal framework on freedom of expression provides a useful point of observation on how and to what extent bans on hate speech may be compatible with liberalism. So, first, I will briefly describe its main components, and then discuss its consequences for the debate on hate speech and liberalism.

2. International law protects freedom of expression, while also prohibiting what is currently called ‘hate speech’. Under art. 20, par. 2, of the ICCPR, Contracting States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Under art. 4 of ICERD, Contracting States are required to “declare an offence punishable by law all dissemination of ideas based upon racial superiority or hatred,” incitement to racial discrimination and to acts of violence motivated by race, ethnic origin, and color. According to the same provision, they have to do so with due regard to freedom of expression. So, structurally, speech, or more broadly expression, as characterized in each of the two instruments, is not protected by freedom of expression. However, its legal prohibition has to respect the conditions established by international law for the limitation of freedom of expression: legality, necessity in the interests of enunciated public interests, and proportionality (art. 19 ICCPR).

The European Convention on human rights does not contain a specific provision on ‘hate speech’: its art. 10 protects freedom of expression (par. 1), and sets the conditions under which it can legitimately be restricted by the Contracting States (par. 2). The ECtHR has endorsed the ‘hate speech’ terminology in dealing with manifestations of freedom of speech, that, verbal or non verbal, allegedly stir up and justify violence, hatred, or intolerance. It has ruled that Contracting States can restrict such expression, under the criteria established by art. 10, par. 2: again, legality, necessity in the interests of enunciated public interests, and proportionality. In a few cases, it has held that certain allegedly extreme manifestations of freedom of speech are altogether excluded from the scope of the Convention (under its art. 17, prohibition of abuse of rights), as incompatible ratione materiae with it.

3. The monitoring bodies established by the three treaties have clearly recognized that freedom of expression is among the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. They therefore also affirm that prohibited speech is to be construed as an exception to the rule on freedom of speech. For this reason, any limitations to freedom of expression under art. 10 ECHR, or measures adopted by States to implement art. 20, par. 2, ICCPR and/or art. 4 ICERD, have to remain within strictly defined parameters, have to be convincingly established, are subject to restrictive interpretation, and must not “put in jeopardy the core of right itself.” When the restriction does not satisfy those criteria, therefore, the expression, verbal or otherwise, is protected speech under the general rule. However, the practice of the monitoring bodies is hardly consistent with those standards. One may reasonably ask why.

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Rinella on Sharia in the State System

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 Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.

This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.

Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.

My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.

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Martinez-Torron on Religious Exemptions

This past July, the Center co-hosted a conference with LUMSA University 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 Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.

1. Taking the right approach

The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”

From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.

In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.

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Davidyan on Liberalism and Religion

This past July, the Center co-hosted a conference with LUMSA University 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 Gayane Davidyan (Lomonosov) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Slightly expanding the problem of our discussion, I will go beyond the borders of the United States and Western Europe, and pose a general question: arising on a certain soil under favorable historical conditions, is liberalism a national phenomenon, inherent only in a particular type of society or state? People with liberal views and values ​​live at all times and across the globe. Even in dark times, in conditions of slavery and serfdom, thinkers wrote about the values ​​of freedom and law; historical figures like Spartak, Emelyan Pugachev fought for this freedom.

As you know, the foundations of modern European liberalism begin to take shape in the 16th-17th centuries. John Locke, in “Two Treatises on Government,” formulates the most important principles that formed the basis of the future political and social liberalism: economic freedom as the possession and use of property, and intellectual freedom, including freedom of conscience. The second principle, in his opinion, is the right to life, personal freedom, and private property. People fought for a long time to obtain and assert these rights and values and are still fighting every day. The most advanced ideas of liberalism had a great influence on Russian reality at the end of the 18th century. Empress Catherine the Great, studying the ideas of Montesquieu, Cesare Beccaria, and Voltaire, wrote an order to the deputies of a special legislative commission in order to change the concept of royal power in Russia. Liberal ideas developed further and led to fairly liberal reforms in the second half of the 19th century. However, the reception of Western European liberal ideas in Russia did not take place. And against the background of a strong absolute monarch, all these reforms seem to be “quasi-reforms.” Does this mean that liberalism as a system of organizing social and state life can form the basis only for some states that have a special specific path of development, a special culture, and other features? I would not agree with this, since the desire for freedom, dignity, and the preservation of life are the basic needs of a person with any worldview, and one can hardly speak here about the advantage of one civilization over another.

But liberalism is not only ideas; it is also necessary that a sufficient social environment exist for their perception. In Russia, it was clearly insufficient. And here, the problem was rooted. The limited social environment made it impossible to realize the liberal concept. This was the reason why ideas remained ideas.

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Cavana on Religious Exemptions as a Problem for Liberalism

This past July, the Center co-hosted a conference with LUMSA University 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 discussion papers. Professor Paolo Cavana (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

[1] Liberalism, both as a political doctrine and in its historical manifestation, has known several variants. This notwithstanding, there are certainly some common principles underpinning liberalism. Among these, we must include the primacy of the individual and the protection of his freedom against all forms of political oppression. It is no coincidence that liberalism was born and grew, in Europe and in Great Britain, starting from the Protestant Reformation. It represented a reaction to absolute Monarchies and to the concentration of powers they entailed. The different historical events of the United Kingdom and of continental Europe later marked a furrow in the development of liberalism doctrine and in its historical achievements, which also had effects in giving life to the peculiar American constitutional experience.

Among the main factors that marked the development of liberalism and its historical achievements, there is certainly religion, which has always played a fundamental role. Suffice it to say that the two English revolutions of the seventeenth century, which laid the foundations of liberal constitutionalism, were fought by Parliament in the name of religious freedom against the monarchy and its claim to impose a state religion on its subjects. On the contrary, the French Revolution, and the European liberalism that prepared it and followed it, taking into account the tragedy of religious wars, considered the Church and religion as an obstacle to civil and political progress. As such, both would eventually have to be overcome, or at least they were to be kept closed within the private sphere of individual conscience. This gave European liberalism the anti-religious character that has always differentiated it from the Anglo-Saxon one.

More generally, it can be said that European liberalism, which rests its foundations on the absolutist legacy of monarchies and on the theories of Montesquieu and J.J. Rousseau, since its inception, has always fought against social formations (Le Chapelier Act), considered to be a potential diaphragm between the individual and the State and a source of inequality between citizens. On the contrary, English and American liberalism has always viewed social formations – local communities, religious groups, and free associations – as an essential counterweight to the authority of the central State and hence a guarantee for citizens’ freedom.

It should also be noted that it was not religion in the abstract but in the concrete, that is, Christianity, which laid the groundwork for the birth of the liberal doctrine (B. Croce). In fact, neither the ancient world nor other religions or civilizations recognize – like Christianity, which germinated from Judaism, does – the role of human freedom even in the face of God. As a result, the act of faith can only be the fruit of human free choice, which is the very foundation of man’s dignity: “you have made him little less than a god, with glory and honour you crowned him,” says the psalmist (Psalm 8).

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Barclay on Religious Exemptions and Hate Speech

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 Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

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Walsh on Juridical Post-liberalism and Ius

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 Kevin C. Walsh (Catholic University of America School of Law) submitted the following paper for Workshop 1, on the general themes of the conference, which we are delighted to publish here:

I have three goals with this set of brief reflections for our first session on “Liberalism’s Limits: Religious Exemptions and Hate Speech.” One is to suggest the possibility of a smooth transition to a form of juridical post-liberalism in societies rooted historically in political liberalism. A second is to sketch out a few distinctions that will be helpful for us in analyzing particular questions of law and right related to religious exemptions and hate speech. The third is to offer a couple of suggestions about the potential practical utility of attending to these broader theoretical considerations. Those suggestions relate to the question of how to understand the role of dignitary harm in law, a matter that sometimes arises at the intersection of religious exemptions and hate speech.

I. Overcoming liberalism through transformation from within the juridical domain

When things are coming apart, it is natural to consider what endures. We are thinking about the limits of political liberalism because it looks like liberal polities are coming apart. We are interested in how to understand and to navigate whatever change it is that we are going through. In considering the limits of liberalism in connection with religious exemptions and hate speech, I focus first on the possibility of overcoming liberalism through transformation from within the juridical domain. Are there ways that faithful (in the sense of loyal, oath-bound) participants in a liberal society’s legal justice system not only may operate entirely without reliance on foundational premises of political liberalism, but also may actively reframe those elements of the legal justice system in its practical operation that push toward reliance on such premises?

To answer this, we first need a working understanding of political liberalism. This way we can know what we are asking lawyers and judges to do without. For this, I will draw on Leo Strauss, who wrote: “If we may call liberalism that political doctrine which regards as the fundamental political fact the rights as distinguished from the duties of man, and which identifies the function of the state with the protection or the safeguarding of those rights, we must say that the founder of liberalism was Hobbes.” [1]

From this formulation, we can isolate two Fs of political liberalism. First is the Fundamental Political Fact of individual rights as distinguished from duties, with rights taking priority over duties. Second is the Function of the State as the protecting or safeguarding of each individual’s individual rights. [2]

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