August 12, 2022

Reality comes in degrees, but the law must draw clear lines. English law permits the abortion of healthy foetuses up to 24 weeks after conception — but no later. It also lets you drive on your 17th birthday — but not a day before. Obviously one day makes little real difference, but you have to draw the line somewhere. Yet as Kant might have said: that’s all very well in practice — but does it work in theory?

This question is neither entirely impractical nor entirely a joke: knowing why you draw a line here and not there makes it more defensible than an arbitrary one. The Lord originally demanded 50 righteous men from Sodom as the price for sparing the city. By methods that are wearily familiar to any parent who’s been in arguments over bedtime, Abraham whittled Him down to 10. (“Fifty, Lord? But then why not 45?.” “Ok, 45.” “Thank you, Lord. But then why not 40?” Etc.) You suspect that if the Lord had chosen 50 for a reason, He would have stuck to it — not that it made much difference in this case; not to Sodom.

The issue continues to concern the central question of political life, namely whether, and if so when and how, the state may interfere with you. In Iran and North Korea the answer is: quite a lot. But anyone who is liberal, in the broad sense of preferring not to live in either a medieval theocracy or a maximum-security prison, will sympathise with J. S. Mill’s harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

In Britain, this principle leaves everything to play for. After all, almost anything risks some harm to some others.

The consequent possibility, that liberalism gets eroded from within, is not an idle fantasy. Very recently, an ex-army veteran was arrested for tweeting a transgender pride flag in the shape of a swastika because, the police said, “someone has been caused anxiety by [his] post”. Of course, that statement itself will also create plenty of anxiety; so presumably Hampshire Police should now arrest themselves. Indeed their interpretation of “harm” is so loose that probably the only person Mill’s doctrine could protect is Bartleby the scrivener, the infamous Wall Street clerk who spent all day staring out of his office window at a brick wall, and whose mild but unfailing response to any request to do anything, ever, was: “I would prefer not to.”

Setting aside that demented reading of it, any actual application of Mill’s rule must therefore draw a principled line between the harms that do, and those that do not, fall under its scope; at least, it had better be principled if we want to avoid the conceptual creep that did for Sodom and now looks like doing for us.

I cannot completely resolve this; but there is a principle that settles things partially, but enough to be useful: namely, consent. This is not new: some philosophers have suggested that Mill had it in mind all along. That what Mill meant, or what he should have said, was: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others who do not consent to it.” In other words, the state may not interfere to prevent consensual harm to anyone. Note this allows that there are other areas where it also may not interfere, for instance where the “harm” is non-consensual but trivial — like asking a policeman whether his horse is gay, a question to which neither the policeman, nor presumably the horse, ever consented.

To see what difference this makes, let us return to 1987, when the Obscene Publications Squad acquired a videotape of sado-masochistic acts among consenting men. At one point a man hammered another man’s foreskin into a block of wood before cutting his (the hammeree’s) penis with a scalpel. Further videos came to light; and soon 16 police forces across the country found themselves with nothing better to do than to join in the hunt for the stars of these home videos, spending hundreds of hours poring over the 400 tapes that they eventually seized. Operation Spanner had begun.

The painstaking work eventually came good, and in late 1989, 16 men stood trial at the Old Bailey on charges including actual bodily harm, unlawful wounding, aiding and abetting assaults against themselves, and bestiality. Bestiality aside, the defence’s main argument was not that these things didn’t happen, but that they happened with the consent of those involved; and, they argued, the law cannot stop consenting adults from doing what they want.

But the House of Lords decided that it can. Where A wounds or assaults B, the Lords said, occasioning him actual bodily harm in the course of a sado-masochistic encounter, the prosecution does not have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861. In short, consent is not a defence.

But in a state that respected Mill’s principle, in the form that I am recommending, it would have been. And it should have been, too.

Doubtless Cornwall crossed a line plucking out Gloucester’s eyes; ditto Darth Vader vis-a-vis Luke’s hand. But should we imprison every surgeon who removes an organ or amputates a limb? The law rightly prosecutes anyone who knocks you unconscious on the street; should it also condemn every boxer who wins on a KO? For what is the difference? No magic power puts boxing rings and operating theatres outside the reach of the law; but there is actual or presumed consent.

Nor is consent an arbitrary line. Who is better placed than an adult risking injury to determine whether the potential or actual benefits make it worthwhile? No ethicist, politician or judge could have what Hayek might have called the “local knowledge” that you have.

This proposed interpretation of Mill’s formula also applies to others who are neither surgeons nor boxers nor (typically) sado-masochists: I mean, those who study and work in our universities. Anyone who has been near one of these in recent years must have noticed that it is nowadays nearly impossible to conduct an open, honest debate there about, say, the integration of illiberal religious values, or transgender issues and women’s rights. One driver of this process has been the inflation of harm: the idea that by even discussing certain issues — even giving the impression that they are “up for discussion” — you are harming an audience whose identity thereby feels threatened.

Take the case of Lisa Keogh, then a 29-year-old law student at Abertay University, who in 2021 found herself under investigation for asserting that women have vaginas and that “the difference in physical strength of men versus women is a fact”. Younger classmates reported her for making “offensive” and “discriminatory” comments; these prompted a formal investigation into her conduct.

Or again, Imperial College’s harassment and discrimination policy proscribes pretty much anything that anyone might find offensive — citing jokes about religious beliefs and rituals as an example. In effect, Imperial College is reinstating blasphemy laws. It is also frustrating the aim of university teaching, particularly in my own field, where shocking people out of deeply-held beliefs, or at least into critical reflection upon them, is really the point. Jokes can be most effective in this connection, as anyone who has left a religion themselves probably knows, as too will anyone who appreciates David Hume’s sardonic asides on the matter, let alone the more pointed and vicious rhetoric of Gibbon or Voltaire, to say nothing of Life of Brian, The Book of Mormon or Jesus and Mo.

Again: Steven Greer, a human rights scholar with an outstanding international reputation, had for 15 years up to 2020 been teaching a human rights course at Bristol. Because Greer was critical of Sharia Law, Bristol Islamic Society complained, writing in a petition that the university should not permit a Professor to mention the Charlie Hebdo massacre in connection with Islam’s stance on free speech. Bristol conducted an eight-month inquiry before clearing Greer of all charges. But because of his teaching, he was subject to a social media campaign that made him fear for his life. On top of that, Bristol authorities restructured Greer’s course so as to make it, in their words, “respectful” of the “sensitivities” of the students on it.

Again: a Times investigation this week has found that universities have been removing books from syllabuses, or making them optional, because of their disturbing content. Essex University, for instance, has permanently removed The Underground Railroad, Colson Whitehead’s Pulitzer Prize-winning novel about slavery, from its “Beginning the Novel” module, for its graphic depictions of slavery.

But why should anything other than its intellectual value be relevant to whether a book or article is compulsory or even available for study in a course? And what gives university administrators the right to decide that the “harm” to students that these books supposedly risk outweighs the intellectual benefits that they would undoubtedly confer upon them?

All these cases arise because actors with malicious motives — shutting people up — have manipulated others with more benign motives: administrators wishing to protect students from “harm”. But who gets to decide what counts as acceptable or unacceptable levels of harm? Well, perhaps it should depend on two things: the purpose of the university and the students’ own judgments, as expressed through their voluntary consent.

One practical implementation of this idea could be achieved in two steps. First, at the start of a course, students consent to the risk of exposure to ideas that are legally expressed in ways that they find shocking, disturbing or offensive; and that they understand that by continuing with the course they are implicitly renewing this consent. Consent may be withdrawn at any time by withdrawing from the university. Signing up for a university education would be the intellectual equivalent of stepping into a boxing ring.

Second, any complaint against any lecturer’s or student’s speech would need to show that it failed one of two tests: Is the speech legal? And did the audience consent? If the answer to both is yes, the complaint is immediately and automatically dismissed.

Three clarifications. First, the waiver would not cover illegal speech. For instance, bullying directed at individuals in the classroom might constitute illegal harassment. Nobody is being given permission to direct tirades against students, to defame anyone, to speak in contempt of court, and so on.

Second, the waiver covers expression of ideas, but not speech that directly impaired the functioning of the university, for instance publicising confidential information; nor would it preclude regulation of the time, place and manner of speech. (You couldn’t bring a megaphone into an exam hall.) Nobody would be consenting to any of that.

Third, the proposal does not give anyone a power of veto. A student who withdraws consent is not preventing any teacher or fellow student from saying or hearing anything “offensive”, but rather excluding themselves from a university where the “offensive” speech will happen anyway. I often hear people say: “If you don’t like abortions, don’t have one”; whatever you think of that, it is surely at least as reasonable for a professor to say: “If you don’t like my lectures, don’t attend them.” Consenting adults should be free to discuss Hume or vaginas or Sharia Law, or anything else. If you don’t like it, don’t join in.

The same goes for reading lists. While there may still be a case for specific trigger warnings for students with PTSD, there would be no case for making any text optional, or taking it off the course, just because it contains material that students might find offensive. At any rate, no student who claimed to be — or even was — shocked and offended by a graphic depiction of slavery, could complain about having to read one; that is what they signed up for. Admittedly, this would not address the incentive to virtue signal; but that is a problem in every corporate environment.

But the basic idea may also have broader applications. For instance, the Online Safety Bill aims to prevent “online harms” by making platforms such as YouTube liable for the harms suffered by users. Replacing “harm” in the Bill with “non-consensual harm” could liberalise it in a helpful way: it could then be a defence, for instance, if the platform could prove that on joining, the user had ticked a box consenting to the risk of seeing distressing material. On the other hand, the Online Safety Bill is so profoundly chilling that to tinker with it may be to miss the point: there is a strong case that the only meaningful way to “liberalise” it would be to scrap it altogether.

Returning to universities, nobody is proposing to scrap them altogether; our Higher Education institutions are remediable and worth fighting for. Still, this proposal won’t solve much by itself. As I have written before, universities should also adopt institutional neutrality, scrap all ideological training for staff or students, institute secret voting at all decision-making levels and offer free-speech induction for incoming students, essentially saying: you can say what you like here, and so can anyone else; this is a good idea and you need to get used to it.

All this could usefully be written into the guidance on the Higher Education (Freedom of Speech) Bill currently going through Parliament. One effect would be to remind Vice Chancellors in England and Wales, and the people advising them, that the whole point of universities is intellectual inquiry and the dissemination of its fruits; and that if this is your aim, then nothing matters more than free speech and academic freedom. What is tragic, and absurd, is that they of all people so obviously need reminding of it in the first place.

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