This post follows on from here.
Consider two possible societies; one in which members of a minority frequently see themselves as the target of hateful messages1 and one in which they have a much greater sense of dignity. I agree with Waldron (as I suppose virtually everybody of sound morals would) that we should desire the latter society, and that is the society that is ‘well-ordered’ (in the sense Waldron uses it). We want to live in a society that is well-ordered, in which all people may live their lives without fear or encountering hateful propaganda. It may seem that we should stop there – if that is what we want, then we should actively try to create that society and discourage all efforts to the contrary. But should we use regulation by the state as a means of bringing about that sort of society? Suppose we want to bring about a society that we consider well-ordered as a result of the fact that nobody interrupts each other. It seems to me that this society is ‘well-ordered’ in the sense that Waldron is talking about. Of course, someone interrupting another person is not as undesirable as someone handing out racist propaganda on the street. Waldron’s argument is not a question of degree or ‘drawing the line’; it is a question of bringing about well-ordered societies. While we want to discourage people from interrupting each other, it is clear that this is not the kind of act that should be regulated. So, even though we rely on the state to shape our society into one that is well-ordered, there are some things which are inappropriate to regulate. Again, this is not a question simply of whether the act in question is a grossly immoral act or not. We can be fined for parking our vehicle for too long in the same place. This is a relatively minor misdemeanour, and yet it does not seem inappropriate to prohibit it with a reasonable and proportionate punishment. The question therefore raised is this: what sort of acts should be prohibited by the state?
There are certainly some acts that we want to be criminalized; things like homicide (‘murder’ generally refers to only unlawful homicide, and I will avoid the term so that I do not end up begging the question) and rape (with hefty punishments to reflect their severity). I do not want to get into a prolonged discussion about the justification for punishment by the state, or what role that punishment should play. It will serve our needs merely to attempt to distinguish between those acts we find objectionable and want to regulate, and those that we also find objectionable but do not want to punish the perpetrator. For the former kind, rather than pick a terrible act like homicide, I will pick something relatively benign; homicide is such a serious crime that we might want to say that regulation enters the picture when the act is sufficiently immoral. I do not think this is the case, and by using an example of a relatively harmless act, this will become apparent. The example I wish to use is this: I believe that the state may justifiably intervene to prevent people dropping litter in public spaces. I have been arguing that we should not regulate hate speech such as racist tweets, and yet I find that racist abuse is a greater moral evil than dropping litter. So it is not simply a question of degree, i.e. ‘how morally objectionable does an act have to be for the state to be justified in prohibiting it?’. What then is the difference? To answer this, let us give an example of the other kind of act (which we object to but do not wish to regulate).
Continued here.
1 c.f. Waldron, J. (2012) The Harm in Hate Speech. Cambridge, MA: Harvard University Press. pp. 65-69
