Balancing rights
September 27th 2010 14:24
There's something to the idea that happiness and suffering are mental, and there's something to this idea even if the point is arguable (surely a coma patient who's raped can be said to suffer?).
Now, offence seems to be a purely mental thing. After all, it's not like being stabbed or shot, and a doctor can't point to a part of your body and identify the damage.
But from the perspective that all that we may enjoy and suffer is mental anyway, why should the "purely" mental be distinguished from what has more obvious material causes? -- If you feel a pain, isn't that still a pain, even if there's nothing physiologically wrong with you?
In fact, treating the mental as as real as mental-plus-physical isn't new to us in other contexts. Society now takes "mental illness" more seriously than it used to, though it still has the smell of dodginess around it; and the law has long recognised a tort of "nervous shock", which is basically where you harm someone, and someone else is disturbed and sues you (though this still has the smell of dodginess around it).
All this is by way of justifying the idea that people have an interest in not being offended -- perhaps even a right; and that this might count as a legitimate restriction of freedom of speech.
John Stuart Mill seems to have reasoned similarly, in On Liberty; and this idea is represented in laws against offensive language, in censorship laws, in Holocaust denial laws, and in the actions of governments when confronted by images that offend Islamic populations.
How does one resolve questions of balancing rights? If there's a right to freedom of speech, and a right to not be offended, which one wins?
I think that, if you want a reasoned answer to the question, you'd have to look for some way of comparing the rights. Otherwise, it's just apples and oranges, and nothing more could be said.
In other words, you'd have to examine the grounds of the relevant rights, and compare them in terms of this ground. What justifies any particular right being a right at all? What common currency can two different rights be reduced to?
Unfortunately, different people give different reasonable answers, so that's hurdle one -- deciding what framework in which to think (let alone hurdle two -- answering the reformulated question).
For instance:
-- There are various political philosophies, and each gives differing accounts of what the limits of state power are. For example, John Rawls might have said something like: a government may only do what rational agents in an ideal state of nature would have consented to.
-- There are countless individual-oriented ethical systems, and the duties, obligations, imperatives, values of these systems in effect create rights. For instance, a "Thou shalt not murder" arguably creates a right not to be murdered; a duty towards your parents arguably creates a parental right, and so forth.
-- There are systems that are both political and individual-oriented -- for instance, utilitarianism. Mill would have treated freedom of speech as ultimately a matter of maximising happiness -- it's a good right to give people, because in the long run (how long a run?) it leads to greater happiness for society.
-- Or someone might be quite positivist and say, "There's no grounds for any rights at all, whether human rights or civil rights, or anything else. It's just a pure matter of power, and, in the West, of voting."
Now, offence seems to be a purely mental thing. After all, it's not like being stabbed or shot, and a doctor can't point to a part of your body and identify the damage.
But from the perspective that all that we may enjoy and suffer is mental anyway, why should the "purely" mental be distinguished from what has more obvious material causes? -- If you feel a pain, isn't that still a pain, even if there's nothing physiologically wrong with you?
In fact, treating the mental as as real as mental-plus-physical isn't new to us in other contexts. Society now takes "mental illness" more seriously than it used to, though it still has the smell of dodginess around it; and the law has long recognised a tort of "nervous shock", which is basically where you harm someone, and someone else is disturbed and sues you (though this still has the smell of dodginess around it).
All this is by way of justifying the idea that people have an interest in not being offended -- perhaps even a right; and that this might count as a legitimate restriction of freedom of speech.
John Stuart Mill seems to have reasoned similarly, in On Liberty; and this idea is represented in laws against offensive language, in censorship laws, in Holocaust denial laws, and in the actions of governments when confronted by images that offend Islamic populations.
***
How does one resolve questions of balancing rights? If there's a right to freedom of speech, and a right to not be offended, which one wins?
I think that, if you want a reasoned answer to the question, you'd have to look for some way of comparing the rights. Otherwise, it's just apples and oranges, and nothing more could be said.
In other words, you'd have to examine the grounds of the relevant rights, and compare them in terms of this ground. What justifies any particular right being a right at all? What common currency can two different rights be reduced to?
***
Unfortunately, different people give different reasonable answers, so that's hurdle one -- deciding what framework in which to think (let alone hurdle two -- answering the reformulated question).
For instance:
-- There are various political philosophies, and each gives differing accounts of what the limits of state power are. For example, John Rawls might have said something like: a government may only do what rational agents in an ideal state of nature would have consented to.
-- There are countless individual-oriented ethical systems, and the duties, obligations, imperatives, values of these systems in effect create rights. For instance, a "Thou shalt not murder" arguably creates a right not to be murdered; a duty towards your parents arguably creates a parental right, and so forth.
-- There are systems that are both political and individual-oriented -- for instance, utilitarianism. Mill would have treated freedom of speech as ultimately a matter of maximising happiness -- it's a good right to give people, because in the long run (how long a run?) it leads to greater happiness for society.
-- Or someone might be quite positivist and say, "There's no grounds for any rights at all, whether human rights or civil rights, or anything else. It's just a pure matter of power, and, in the West, of voting."
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Comment by Nicolás
In my opinion, you have to give each one the importance it has. If you have freedom of speech on one hand and a right to not be offended, you have to consider which one has more importance for the "healthy functioning" of society.
For example: a political figure (a president, if you want) has a right to not be offended, as every other citizen (because, after all, he is just another citizen) but if his right to not be offended is considered more important than your freedom to speech, then the normal and healthy functioning won't happen. Freedom to speech is necessary in a democratic society. And your right to not be offended, well, it's just "under the shadow" of the other right.
In fact, many Latin American jurisprudence from the Interamerican Court of Human Rights has adopted this line of thinking. Also, in France, after that case about ex-President Mitterand's health, a Strasbourg Court ruled that freedom of speech was necessary, even if it left the right to not be offended in the background.
Of course there are rights much much more important than others, but every case must be decided carefully.