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Published online by Cambridge University Press: 20 July 2015
In The Hateful and the Obscene, Sumner offers a consequentialist reading of John Stuart Mill’s political philosophy that blinds him to the complexity and normative attractions of Canadian law's response to hate speech and pornography. This essay argues that qualified deontological moral philosophy provides a more adequate basis on which to understand the bodies of law examined by Sumner. The qualified deontological analysis is more adequate since it (unlike consequentialism) provides a basis on which to account for the presence within Canadian law of incommensurable values. The analysis offered here also addresses three further weaknesses in Sumner’s text. Sumner offers an inadequate account of the role played by the concept of community in the law’s operations. He also fails to recognise that a strong commitment to identity politics has shaped the development of Canadian law. But perhaps the most significant weakness in The Hateful and the Obscene is Sumner’s adoption of a ‘Millian’ position on free expression that fails adequately to address the threats posed by those political activists who seek to undercut liberal democracy's foundations.
* (Toronto: University of Toronto Press, 2004) ISBN: 0802042392 (Cloth), 0802080839 (Paper).
1. The Hateful and the Obscene at 3 [HO].
2. Ibid.
3. HO at 87 (hate speech), 98-99 (pornography), and 19 (on hate speech and pornography as hard cases).
4. Mill, J.S., On Liberty, ed. by Himmelfarb, G. (London: Penguin, 1974) at ch. 2Google Scholar.
5. HO at 31.
6. HO at 165.
7. Ibid.
8. Ibid.
9. HO at 16.
10. HO at 27.
11. HO at 31.
12. HO at 27.
13. HO at 31.
14. Ibid.
15. J.S. Mill, supra note 4 at 62-63.
16. HO at 20.
17. HO at ch. 2. See also 7-8 (on ‘liberty-rights’).
18. J.S. Mill, supra note 4 at 68.
19. HO at 25.
20. HO at 33.
21. Ibid. (The term ‘consequentialist principle’ is Sumner’s. He uses it to point up an ‘aggregative’ strand in Mill’s thought: i.e., Mill’s readiness to accept limitations on liberty where they maximise the sum total of welfare. See HO at 31.)
22. Fish, Stanley E., There’s No Such Thing As Free Speech And It’s A Good Thing, Too (Oxford: Oxford University Press, 1994) at 104 Google Scholar.
23. R. v. Oakes, [1986] 1 S.CR. 103 at 135ff per Dickson CJC [Oakes].
24. Ibid.
25. HO at 69.
26. HO at 68.
27. The guarantee of equality is set out in section 15 of the Charter. See HO at 52-54.
28. HO at 59.
29. R. v. Keegstra, [1990] 3 S.C.R. 697 [Keegstra].
30. HO at 57.
31. Ibid.
32. Following Keegstra’s conviction, the Alberta Court of Appeal decided (unanimously) that his right to free expression had been infringed by the prohibition on hate propaganda. See ibid.
33. HO at 78.
34. HO at 68-69.
35. HO at 88 and 218, n. 1. See also 13, where Sumner notes that section 163(8) ‘leaves it an open question whether all pornography is obscene (and also … whether all obscenity is pornographic)’.
36. HO at ch. 4.
37. HO at 92-101.
38. Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494 at 523Google Scholar, per Wilson J.
39. R. v. Butler (1992), 89 DLR (4th) 449 at 467 [Butler].
40. HO at 190.
41. HO at 105-20 and 125.
42. HO at 174-75.
43. HO at 202.
44. HO at 79.
45. HO at 120-25.
46. HO at 200.
47. HO at 163-64.
48. HO at 131 (discussing MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987) at 180 Google Scholar).
49. HO at 163-64.
50. See supra notes 11 and 12 (and associated text).
51. See Gertrude Himmelfarb, “Editor’s Introduction”, supra note 4 at 30.
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53. J.S. Mill, supra note 4 at 69-70.
54. Ibid. at 70 [emphasis added].
55. Ibid.
56. HO at 21.
57. See Hampsher-Monk, Iain, A History of Modern Political Thought: Major Political Thinkers from Hobbes to Marx (Oxford: Blackwell, 1992) at 374–75 Google Scholar (noting Mill’s emphasis on the intrinsic value of liberty and his (‘almost Aristotelian’) emphasis on the development of human potential). See also supra note 4 at 30.
58. See supra note 23 (and associated text).
59. Keegstra, supra note 29 at 771ff per Dickson CJC.
60. Imprecise use of the term ‘balancing’ pervades the case law under consideration. But judicial use of the term indicates that it has to do with the accommodation of distinct (and uncombinable) sources of value.
61. HO at 79.
62. On indefeasible exclusionary reasons, see Raz, Joseph, Practical Reason and Norms, 2nd ed. (Princeton, NJ: Princeton University Press, 1990) at 35–48 Google Scholar.
63. HO at 60.
64. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at ch. 13Google Scholar.
65. See Chapman, Bruce, ‘Law, Incommensurability, and Conceptually Sequenced Argument’ (1998) 146 U. Pa. L. Rev. 1487 at 1507-12CrossRefGoogle Scholar.
66. HO at 202-03.
67. HO at 61.
68. HO at 59.
69. Nagel, Thomas, Mortal Questions (Cambridge: Cambridge University Press, 1979) at ch. 9Google Scholar.
70. Fuller, Lon, ‘Reason and Fiat in Case Law’ (1946) 59 Harv. L. Rev. 376 at 376CrossRefGoogle Scholar.
71. Ibid.
72. HO at 120-25.
73. On empirical community, see Mullender, Richard, ‘The Reasonable Person, the Pursuit of Justice, and Negligence Law’ (2005) 68 Mod. L. Rev. 681 at 688CrossRefGoogle Scholar.
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75. Mullender, supra note 73 at 688.
76. Ibid.
77. R. v. Butler, supra note 39 at 465, per Sopinka J.
78. See Blackburn, Simon, Plato’s Republic: A Biography (London: Atlantic Books, 2006) at 26 Google Scholar (on community sentiment as ‘King Nomos’).
79. The phrases quoted in the text are taken from Holmes, O.W., ‘The Path of the Law’ (1897) 10 Harv. L. Rev. 457 at 459Google Scholar.
80. Hegel, G.W.F., Elements of The Philosophy of Right, ed. by Wood, A.W. trans. by Nisbet, H.B. (Cambridge: Cambridge University Press, 1991) at para. 142–45 Google Scholar.
81. Ibid. at para. 301, 308-10 and 315.
82. Ibid. at 9-21 (Preface).
83. Ibid. at para. 34-40.
84. HO at 60.
85. Mullender, Richard, ‘Hegel, Human Rights, and Particularism’ (2003) 30 J. L. & Soc’y 554 at 559CrossRefGoogle Scholar.
86. Taylor, Charles, Sources of the Self: The Making of Modern Identity (Cambridge, MA: Harvard University Press, 1989) at ch. 21Google Scholar.
87. Ibid. at 374 (emphasis added).
88. J.S. Mill, supra note 4 at 123.
89. Caney, Simon, ‘Liberalism and Communitarianism: A Misconceived Debate’ (1992) 40 Pol. Stud. 273 at 274-79CrossRefGoogle Scholar (discussing the political philosophy of, inter alia, Alasdair MacIntyre and Michael Sandel).
90. Keegstra, supra note 29 at 746.
91. Ibid. at 745-46.
92. ‘Form of life’ is used in the sense loosely specified in Wittgenstein’s later writings: i.e., the assumptions, behaviour, practices, institutions, and traditions that shape a particular culture (or sub-culture). See Pitkin, Hanna Fenichel, Wittgenstein and.Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought (Berkeley: University of California Press, 1972) at 133–39 Google Scholar.
93. If correct, the analysis in the text suggests that the thinking of Canadian judges is a form of ‘liberal nationalism’ as described in Kymlicka, Will, Politics in the Vernacular: Nationalism, Multi-culturalism, and Citizenship (Oxford: Oxford University Press, 2001) at 211–12 and ch. 13CrossRefGoogle Scholar. See also Mullender, Richard, ‘Human Rights: Universalism and Cultural Relativism’ (2003) 6 Critical Rev. Int’l Soc. and Pol. Phil. 70 at 94 and 99, n. 55CrossRefGoogle Scholar (arguing that Canada’s commitment to mul-ticulturalism gives expression to a ‘partially comprehensive’ conception of the good).
94. R. v. Butler, supra note 39 at 498 (quoting from Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 255 Google ScholarPubMed).
95. Ibid.
96. HO at 72.
97. HO at 200.
98. On toleration, see Raz, supra note 64 at 402 (where it is identified as the readiness not to act against disapproved modes of behaviour and/or expression).
99. HO at 173.
100. Rawls, John, A Theory of Justice (Oxford: Oxford University Press, 1971) at 220 and 453-62Google Scholar.
101. Ibid. at 220.
102. Ibid.
103. Stern, J.P., Hitler: The Führer and the People (London: Fontana Press, 1984) at 87 Google Scholar.
104. Rawls, John, The Law of Peoples (London: Harvard University Press, 1999) at 24 and 52, n. 65Google Scholar.
105. Taylor, M., ‘Web of Hate’, The Guardian (4 October 2006) (G2), 12 Google Scholar (noting violence suffered by individuals whose personal details had appeared on the Redwatch website). (The Blair administration has identified this website as a ‘threat’ to the democratic process that needs to be taken ‘very seriously’ (personal communication (held on file with the author) from Vernon Coaker MP, Parliamentary Under-Secretary of State with ministerial responsibility for political extremism)).
106. The point in the text has relevance to, inter alios, Abu Hamza. See O’Neil, S. & McGrory, D., The Suicide Factory: Abu Hamza and the Finsbury Park Mosque (London: HarperCollins, 2006) at ch. 4Google Scholar (noting Hamza’s advocacy (during well attended meetings across England) of holy war (by means of, inter alia, suicide bombings) and his repeated efforts to incite violence against Jews, gays, lesbians, and women who fail to obey their husbands).
107. Ibid. at xx (noting that three of the men who detonated bombs in London on 7 July 2005 had ‘listen[ed] to Abu Hamza’s exhortations’).
108. See Freeden, Michael, Rights (Buckingham: Open University Press, 1991) at 53 Google Scholar (on ‘the right to be wrong’: ‘a liberty-right to make mistakes’).
109. HO at 181 [emphasis added].
110. On ‘co-operative morality’, see Honoré, Tony, ‘The Dependence of Morality on Law’ (1993) 13 Oxford J. Legal Stud. 1 at 8-9 and 2CrossRefGoogle Scholar. Honoré draws a distinction between a ‘co-operative morality’ (concerned with coexistence with all others) and a ‘hostile’ morality (that restricts co-operation to the members of a favoured group and betrays hostility towards others).
111. See Gardner, John, ‘Justifications and Reasons’ in Simester, A.P. & Smith, A.T.H., eds., Harm and Culpability (Oxford: Clarendon Press, 1996) 103 at 111-12Google Scholar.
112. Dickens, C., Hard Times (London: Penguin, 1969) at 131 Google Scholar.
