THE DUALISTIC NATURE OF DEMOCRATIC SELF-GOVERNANCE

“Democracy,” in its classic form, means “rule by the people.” That is, in democratic systems, the people are thought to govern themselves. As Alexander Hamilton (Reference Hamilton1836 [1937]) put it, “Here, sir, the people govern …” I have argued elsewhere (Jelen Reference Jelen and Davis2010) that democracy is essentially a system of “self-governance.” However, the notion of self-governance has at least two aspects. Self-governance can be seen as a collective enterprise, and also as an individual-level challenge. The second sense of self-governance, in which governing is conducted by self-governing individuals, is the focus of this essay, although the individual and collective aspects of democratic governance clearly interact.

In the most obvious sense, democratic self-governance refers to the capacity of citizens to govern one another. Democracy involves mechanisms (such as individual political participation, elections, interest group activity, and representation) by which public preferences are translated into public policy. At a minimum, democracy would seem to require that there exist some correspondence between public opinion and the actions of government. This translation is by no means direct or certain. Institutions such as the separation of powers, federalism, judicial review, and the inevitable slippage of representation, as well as the idea of representation itself, all constitute barriers to the authoritative enactment of public opinion into law. However, such limitations on public opinion are often controversial (at least in their application). Moreover, some analysts have no difficulty in asserting that some features of United States politics (such as the Electoral College or judicial review) are inherently undemocratic, and that such practices can be justified because of problems associated with direct democracy. In other words, a political system can be “too democratic” to pursue other goals associated with governing, and that some manifestly undemocratic institutions and practices may constitute necessary correctives. Nevertheless, at some level, democracy requires that public opinion be taken into account (and indeed, may represent the ultimate authority) in the making of authoritative, legally enforceable, public policies.

Of course, the existence of such counter-majoritarian institutions, and their prevalence in Western democratic systems, is itself evidence that the process of collective self-governance is not regarded as self-corrective even by those responsible for the creation and maintenance of government institutions. Indeed, institutions such as judicial review, bicameral legislatures, or federalism may reflect pessimism (or at least caution) about the capacity of ordinary citizens to make authoritative decisions about matters of public policy. Indeed, it might be argued that few, if any, political theorists, regard citizen competence as unproblematic. Some, such as James Madison (Reference Madison1937), might argue that certain cognitive limitations are inherent in human nature, and institutions must be created with such limits in mind. Others, such as John Stuart Mill (Reference Mill1975), regard the capacity for individual or collective self-governance as a variable, which can be nurtured given the proper cultural and institutional context. It has often been argued (see especially, McGraw Reference McGraw2003) that the checks and balances inherent in the United States Constitution are a direct result of the Puritan heritage of English Protestantism, and reflect a certain pessimism about the capacity of ordinary citizens on the part of the framers.

The mere existence of institutions in which public preferences are translated into public policy is not sufficient for a polity to be considered “democratic.” Arguably, “democracy” requires that the preferences of individual citizens be both relatively autonomous and authentic. That is, at a minimum, the public preferences expressed by citizens should not be coerced (Dahl Reference Dahl1956). Moreover, it might be argued that the mere absence of coercion is not sufficient, and that citizens be empowered with the means to participate in the formulation of their own preferences. Values and beliefs should not only be un-coerced, but should also, to some extent, be un-manipulated. That is, self-governing citizens should have the capacity and the means to decide for themselves which values and beliefs they seek to apply to their individual private lives, and to their shared public activities.

Of course no set of beliefs is completely un-manipulated. Each of us is subject to numerous personal historical and social influences, which jointly form our individual characters. However, it seems intuitively plausible to suppose that the extent to which individual citizens form their own beliefs, values, and characters is a variable, which differs across individual people, and across subject areas within any given person. For example, the same person may make deliberate, conscious choices among political ideologies or political parties, while retaining a habitual allegiance to a sports team formed when that person was a child.Footnote ¹ At a minimum, the capacity for autonomy would require that every person have the capacity to choose among the influences to which she/he is subjected. Indeed, it might well be argued that the apparently disparate set of rights included in the First Amendment to the United States Constitution (freedoms of religion, speech, press, and assembly) have in common the feature of allowing citizens to participate in the formation of their own characters (Sezer Reference Sezer and Jelen1995). By choosing among political messages, or among religious traditions, citizens make choices about the nature of their private and public persona. Again, although no person can plausibly be regarded as completely self-defining, it seems reasonable to suppose that the degree of individual self-governance differs across citizens, and that a relatively high level of self-definition is desirable for democratic citizenship.

Obviously, a coercive, legally enforced public religion would constitute a formidable barrier to individual self-governance. People who are forcibly converted, or required to express theological beliefs they do not share, are clearly the objects of manipulation and coercion, and to that extent, are not self-governing. However, in other settings, religion may in fact contribute to the development of the capacity for individual self-governance. Religion may offer a source of resistance to the socially coercive majoritarian tendencies of democratic regimes. Whether one describes the persuasive effects of public opinion as representing the “tyranny of the majority” (de Tocqueville Reference Tocqueville1945) or the “spiral of silence” (Noelle-Neumann Reference Noelle-Neumann1993), historical and contemporary analysts of democratic politics have argued that individual citizens may adopt values and beliefs as a result of peer pressure, and that such pressure is particularly pernicious in egalitarian societies. Religious beliefs, values, and attachment may provide a psychological mooring that enables individuals to resist such social pressure. Religion is also thought to provide transcendent values, by which contemporary political and social practices can be evaluated and criticized. If politics is to embody more than the simple “art of the possible,” religiously motivated values and beliefs may contribute to a loftier view of the political process. Many social movements of both the political left and the political right, including the abolition, civil rights, anti-war, and “right to life” movements have had religious bases. In sum, religion has the capacity to subvert or to enhance democratic self-governance at both the individual and collective levels. Attempting to decide whether religion is a positive or negative political force is analogous to arguing about whether fire is a net benefit or risk to human existence.

Apart from the necessity of a certain degree of autonomy for individual self-governance, self-governing citizens should also have preferences, values, and beliefs that are authentic. That is, for any individual citizen, there should be an approximate correspondence between one's preferences (experienced desires) and interests (attributes which provide actual benefits for the citizen). Persons that engage in systematically self-destructive behavior, or in persistent self-deception, are clearly not acting on authentic preferences (Berman Reference Berman1970).

Authenticity, like autonomy, is a variable which differs across individuals and across subject areas in the same person. All of us engage in behaviors which are potentially self-destructive, and most of us hold beliefs that are inconsistent, or which would not stand up to serious scrutiny. Smokers smoke, people overeat, fail to exercise, or vote “incorrectly” (in a manner which does not represent their preferences [Lau and Redlawsk Reference Lau and Redlawsk1997]). Nevertheless, a person who persistently behaves in a manner inconsistent with her/his well-being may not be worthy, or capable, of self-governance. Indeed, legal and moral distinctions are often made which distinguish those people competent to handle their own affairs, and those who are not. For example, minors, people with mental defects, and some felons (who may be considered incapable of making moral judgments) are routinely excluded from making their own decisions, or from participating in public decisions (such as juries or elections).

In most Western liberal democracies, authenticity is not often considered a major problem (see, Dahl Reference Dahl1961). For most people, liberal democrats (small d) assume that there is a reasonably close correspondence between preferences and interests. Indeed, commentators who criticize the preferences of mass publics are regularly accused of “paternalism.”Footnote ² Conversely, some critics of liberal democratic culture often make strong claims against the authenticity of the preferences of mass publics. Feminists of various stripes often assert the need for “consciousness-raising” to bring to mind the political relevance of apparently private concerns, while Marxists decry the “false consciousness” contained in the individualist values of the proletariat.

The concept of authenticity thus involves a rejection of any strong form of subjectivism. Citizen characteristics that are authentic must necessarily correspond to some sort of inter-subjective, or at least external, standard. Authenticity becomes a problem when (as is inevitably the case) such standards are contested.

The individual-level aspect of democratic self-governance would seem to require a certain level of autonomy and authenticity of the values, beliefs, and preferences of ordinary citizens. Taken together, these would suggest the importance of what Rousseau termed “moral freedom,” which was also an important consideration for John Stuart Mill. Rousseau is quite clear on this point:

Similarly, John Stuart Mill, whose “Very Simple Principle”Footnote ³ is often considered a strong endorsement of individual liberty, is nevertheless concerned with individual-level self-governance. In On the Logic of the Moral Sciences, Mill writes:

As I shall argue below, a concern with moral freedom, or of citizens to engage in individual level self-governance, is central to the political applications of both Catholicism and Islam. However, a concern with this sort of authenticity is not a distinctive characteristic of religious ideologies, but also is a problem for analysts operating within a Western tradition of liberal democracy.

Such analyses are consistent with Isaiah Berlin's (Reference Berlin and Berlin1958) concept of “positive freedom,” in which freedom entails the empowerment of mental and moral facilities, and not simply the absence of constraints. People who do not possess a certain level of moral or positive freedom are likely to exhibit dependency, such as slavish obedience to mere appetite, or a lack of ability to make independent choices. To take a simple illustration, laws mandating compulsory education of children and adolescents seem designed to increase the positive freedom of the subject of such laws, even if only to increase their career choices as adults. Many children certainly experience a loss of personal freedom when forced to attend school or to do homework at the expense of other, more enjoyable activities. Nevertheless, the manner in which compulsory education increases freedom seems relatively straightforward.Footnote ⁴

Within the general Western liberal democratic tradition, some analysts have argued that institutions which promote or enhance individual self-governance also render collective self-governance less problematic. In Democracy in America, Alexis de Tocqueville (Reference Tocqueville1945) argues that civic institutions which provide opportunities for public participation increase the capacity of citizens to discern their own “self-interest[s], rightly understood.” Participation in political or civic affairs is thought to create empathy, in which citizens can more readily understand the preferences and perspectives of others. Understanding the diverse sources of public opinion may increase opportunities either for cooperation among different individuals and groups, or for compromise across public and potentially authoritative public policies. Thus, moral freedom can be considered a requisite for democratic citizenship, and would seem to entail the development of both autonomy and authenticity on the part of ordinary citizens.

MORAL FREEDOM IN ROMAN CATHOLICISM AND ISLAM

While I make no attempt at complex or comprehensive theological exegesis in this essay, it is perhaps useful to offer some preliminary comparisons between the faith traditions of Roman Catholicism and Islam. To begin, both traditions make strong ontological claims, based primarily on divine revelation. In this sense, the issue of authenticity is less problematic in these theological traditions than for liberal democrats, since authenticity is based on what are taken to be objective metaphysical and moral truths. Both the Gospels and the Qu'ran are regarded as authoritative texts, in which God (manifested as Jesus or Allah) is revealed. Second, both traditions are “communal” (Benson and Williams Reference Benson and Williams1986; Jelen Reference Jelen2015; Armstrong Reference Armstrong2002), and are practiced in communities. While individual virtue is clearly valued in Islam and Catholicism, practitioners of both belief systems are often identified with collective forms of worship and religious activity. The sacramental nature of Roman Catholicism, as well as the devotional practices associated with Islam, suggests that individualized religious practice can be problematic. While faithful adherence to Catholicism or Islam may be possible at the level of individual belief or observance, both faiths are more easily practice in community settings.

Within each of these faith traditions, it is arguable that individual moral freedom (and, therefore, the capacity for self-governance) requires the ontological mooring provided by religious belief. Both traditions entail the assumption that, without some sort of ideological roots, the individual citizen may be subject to dependency on mere biological appetites (such as lust) or on social influences. Both Catholicism (and, indeed, Christianity generally) and Islam entails two general assumptions: First, objective truths (including moral truths) exist. Second, the actual nature and content of such truths are elusive, owing in part to the flawed and perhaps corrupt nature of human beings. Authenticity, in these monotheistic religious traditions, involves understanding the content of objective moral truths, and applying such knowledge to one's own beliefs and behavior.

The Roman Catholic tradition involves understanding and applying natural law, which is that portion of God's eternal law made accessible to humanity (and to individual humans) though divine revelation and human reason (Gardiner Reference Gardiner1958; Jelen Reference Jelen, Stout and Buddenbaum1996; John Paul II Reference Paul1993). The Church's primary role (including its position on censorship, to be discussed in the following section) is that of a teaching institution, in which the well-formed individual conscience is the ultimate authority. As Pope John Paul II has argued:

Of course, the notion that the conscience must be well-formed is a crucial piece of the puzzle, since human reason is inherently corrupt. One source of corruption is a dependence on mere appetite, which, when limited, humans experience (falsely) as a limitation on their freedom:

Perhaps a more serious risk to authenticity than the temptations associated with the physical and the carnal is the sin of pride. In the Garden of Eden, Satan closes the deal with Eve by assuring her that “Ye shall be as Gods” (Galatians 3:5). The temptation posed by the serpent is not one of carnal pleasure, but rather the desire to supplant and to substitute the human will for God's revelation (through reason and through Scriptural revelation):

Thus, within the Catholic tradition, the individual conscience, formed and developed by reason and contemplation, is the ultimate authority, and the ability to apply the insights from these sources is the embodiment of moral freedom. Notice that the contrast here is not between adherence to Natural Law, and “negative” (in Berlin's sense) freedom, but between positive moral freedom and subjection and dependency on merely human sources of values and preferences, such as partial, incomplete reason, which in turn may be corrupted by carnal appetite and desire.

It is possible to raise a similar set of considerations with respect to Islam with a cursory analysis of the concept of jihad. While a thorough analysis of the concept of “struggle” or “Holy War” is well beyond the scope of this essay, it might suffice to note that many Islamic scholars have distinguished between “lesser Jihad” (actual warfare conducted between combatants to advance or defend the faith) and “Greater Jihad” in which Muslims take on the more demanding and challenging task of coping with their own temptations and desires.

Of course, the two senses in which the concept of Jihad are similar is that both are concerned with obstacles to conversion to or maintenance of Islamic faith, whether such struggle occurs at the individual or societal level (Chandler Reference Chandler2015). At the level of Greater Jihad, the temptation posed by the sin of pride is quite relevant: The very term “Islam” is often translated as “submission,” and the temptation to substitute one's own judgment for the will of Allah is taken very seriously.

Although no Muslim disputes the authority of the Qur'an, the history of Islam is replete with controversies over the interpretation and application of religious doctrine, as well as on the knotty problems involved in politics and disputes over the proper succession to the Prophet. Aside from certain undisputed aspects of the Qur'anic revelation (such as the Five Holy Pillars), the application of Islamic doctrine to contemporary circumstances is by no means simple or straightforward (see especially, Tamadonfar Reference Tamadonfar2015). The rules of extension, interpretation, and exegesis in Islam are by no means settled. As is the case with Catholicism, Islam contains the assumption that there do exist objective moral truths, but the content of specific moral truths may be elusive and controversial.

Thus, both of the theological traditions considered here contain the roots of an apparent paradox, perhaps best captured by the Christian slogan that “the Truth shall make you free.” In order to attain authentically positive freedom in the sense of obedience to self-prescribed law, individual believers (or citizen) must comprehend and apply the standards of a metaphysically objective moral code to their own beliefs and actions. The basis for this somewhat counter-intuitive insight is the notion that genuine freedom that is both positive in the sense of personal empowerment, and negative in the sense of involving the absence of restraints, is ultimately illusory. Unless one is willing to abandon one's sense of morality to a thorough-going relativism, negative freedom is not freedom at all. Rather, citizens who simply understand freedom as the absence of constraints are not free, but are subject to the control of partial, incomplete, and likely corrupt influences. Citizens who are legally, but not morally free, may be “enslaved” (if that is not too strong a verb) by the demands of mere appetite, socialization, or ideology.

One implication of the foregoing analysis is that the constraints imposed by adherence to religious belief may not be more coercive or limiting than those imposed by more secular forces, such as the market, appetite, or social pressure. While most religious traditions contain very specific prescriptions (such as the prayer requirements of most variants of Islam or the mandate for Catholics to participate in the Sacraments) or proscriptions (such as the Ten Commandments), acceptance of a worldview associated with a particular religious tradition most often imposes a structure or an intellectual context within which individuals (or groups) make decisions. For example, despite the apparent clarity of the prohibition on killing in all three of the Abrahamic monotheisms, the problem of the “just war” is a persistent issue within Judaism, Christianity, or Islam (Johnson Reference Johnson2002; Peters Reference Peters1996; Feldman Reference Feldman2003). Although the relationship between religion and democracy is complex, varied, and sometimes conflictual, such complexity is, in principle, no different than that which characterizes the relationship between democracy and capitalism, or democracy and environmentalism. As Cherian George (Reference George2016) has argued, all religious traditions are multi-vocal. Generally, the relationship between religious adherence and moral freedom is often vague or ambiguous, and the claims of believers to embody a superior conception of moral freedom are not implausible.

MORAL FREEDOM AND THE ISSUE OF CENSORSHIP

In classical Western democratic theory, the value free expression is of paramount importance. While the various arguments in favor of free expression are too extensive and too numerous to detail in this essay,Footnote ⁵ the free exchange of ideas through verbal and written exchange is thought to enhance democratic self-governance at both the collective and individual levels. From the standpoint of public self-governance, freedom of speech and of the press is thought to produce competition among diverse ideas, which are pitted against one another in a “marketplace of ideas.”Footnote ⁶ Public discourse is enhanced, and the best ideas are most likely to prevail, in settings in which the public conversation is open to all perspectives and viewpoints.

From a more private, individualist standpoint, the quality of thought of particular persons is generally thought to enhance the intellectual and moral capabilities of citizens who encounter ideas that are unfamiliar, or that induce discomfort. Indeed, John Stuart Mill (Reference Mill1975) has argued that the quality of intellectual markets is enhanced even by the expression of ideas that might be regarded as false or pernicious. People come to understand their own positions, and possible weaknesses within their perspectives, when forced to confront alternative assumptions and worldviews. To paraphrase Mill, those who are only familiar with their own side of a question know little of that. Thus, the capacity of individual citizens to participate in their own personal self-governance is thought to be improved in intellectually challenging settings, which in turn are more likely when there are no restrictions on the range of ideas that people are allowed to receive and to consider.

It is possible to gain a sense of the centrality of the value of free expression by considering some of the restrictions on free expression addressed in American constitutional law. Free expression, again, is thought to enhance the thoughtful exchange of ideas. Legal limitations on free expression often involve assertions that particular communications do not contribute to the marketplace of ideas essential for individual or collective self-governance. In some cases, the communications are considered to be devoid of ideas, and therefore not deserving of legal protection. United States constitutional jurisprudence dealing with obscenity typically entails the claim that certain utterances or publications do not contain ideas (“utterly without redeeming social … value”), and therefore do not constitute speech. Other exceptions entail the possibility that the context in which certain communications occurs make it unlikely that deliberation is likely to occur, and, therefore, that certain narrow exceptions to the right of free expression are permissible. Such concepts as “fighting words” or “clear and present danger” call attention to the narrowness with which such exceptions are drawn.

These arguments, and the narrowness of legal exceptions to the free speech and free press clauses of the First Amendment, entail assumptions involving the reasonableness of participants in public discourse. Specifically, the metaphor of the “marketplace of ideas” entails the belief that people will choose (consciously, if not dispassionately) among the various alternatives offered them. The marketplace only has value if there is some assurance that the best ideas will somehow prevail.Footnote ⁷ A belief in the self-correcting nature of the intellectual market assumes a certain (high) level of competence and a certain level of good faith on the part of those who would participate in public discourse.

Despite the centrality of free expression in Western democracies, it is often argued that the marketplace of ideas is not necessarily neutral or self-correcting. Many observers have suggested that some ideas are more likely to prevail than others. Any number of ideas with clear intellectual content, presented in settings in which deliberation is possible (and may be required) have been (perhaps plausible) candidates for suppression. In some jurisdictions, communications such as Holocaust denial, overt racism, sexual harassment,Footnote ⁸ and pornographyFootnote ⁹ have been limited precisely because of the pernicious nature of the ideas contained in such messages. In such instances, the intellectual market is not considered (by some) to be self-correcting for two reasons. First, some participants in public discourse (whose ideas may include offensive or harmful messages, such as racial intimidation or sexual violence) have self-interests which are sufficiently compelling to limit the quality of their deliberations. There may be substantial limits to the susceptibility of some citizens to persuasion or influence by exposure to competing viewpoints. Second, some social actors may have disproportionate power over other potential participants. To take an example which may not be far removed from the imagination of some readers, an ideologically biased professor may seem subject to the discipline of the “marketplace of ideas” when confronting a dissenting student, but the competition among conflicting ideas may not be equal when one participant holds the grade book, and therefore has partial control over access to valued credentials. In other words, the exchange of ideas which underlies the intellectual market may be corrupted by individual characteristics or social and political contexts. Thus, even strong adherents of the value of free expression (I count myself among them) may need to consider the possibility that even intellectual markets may not be self-regulating, and that the value of free expression may conflict with other liberal democratic values, such as equality or diversity. Further, some analysts have suggested that it may be desirable for individuals (or societies) to hold common transcendent values with which contemporary beliefs and practices can be criticized (Devlin Reference Devlin1965; Brettschneider Reference Brettschneider2012).

Such problems are of course familiar to adherents of Roman Catholicism or Islam, since, as argued in the preceding section, both traditions emphasize the partial, incomplete, and corrupt nature of human reason. The processes of public discourse and private deliberation are inherently problematic, given the barriers between the sources and recipients of Divine Revelation and its human applications. While issues of contaminated or corrupt human nature are, in some way, peripheral to the Western democratic tradition, they are of central importance to the two monotheistic theological systems considered here. In both Catholicism and Islam, authentic moral freedom requires adherence to an objectively correct divine revelation. The decision to accept or reject such revealed belief systems is, of course, a matter of choice, and a question of faith (Wilcox, Wald, and Jelen Reference Wilcox, Wald and Jelen2008). Deities and humans alike are well-admonished to “lead us not into temptation.”

The analyses presented below entail the possibility that some limitations on the free expression of ideas may be compatible with certain understandings of democratic self-governance at the individual level, and, indeed, that such restrictions may enhance the moral freedom (which includes the autonomy and authenticity) of self-governing citizens. These analyses should in no way be understood as endorsements of the draconian measures which the Roman Catholic Church has taken to restrict the circulation of certain ideas, or the ore recent violent actions of some activists who claim the religious motivation of defending Islam. The fatwa issued in response to Salman Rushdie's Satanic Verses, the violence occasioned by “blasphemous” material published by Charlie Hebdo, or the violent aspects of the Jyllands-Posten controversy concerning satirical depictions of the Prophet are, of course, beyond the pale of any civilized discourse or conduct. Nevertheless, the condemnation of such extreme actions does not constitute a blanket condemnation of censorship per se, but may be limited to strong disapproval of violent tactics in the service of goals which, in principle, may be justifiable.

The Roman Catholic Church, of course, has a long history of attempting to restrict objectionable communications, and to encourage the promulgation of views supportive of the Catholic tradition. Indeed, many apologists for the Church have not shrunk from the use of the term “censorship” (Gardiner Reference Gardiner1958; Rakauskas Reference Rakauskas, Coulter, Krason, Myers and Varacalli2007). Since at least 1917, the Church in the United States has issued an imprimatur for any official Church publication which contains officially approved content regarding faith, theology, and morals. More restrictively, the Church began issuing the Index of Forbidden Books at the Council of Trent in 1545 (Betten Reference Betten1935), and only ceased publication of the Index in 1967 (at the end of the Second Vatican Council). Again, in the United States, the National Catholic Legion of Decency began rating the content of films in 1936, and the Legion's rating system provided the basis for the current ratings used by the motion picture industry (Walsh Reference Walsh1996).

For present purposes, what is most important about all of these activities is that such attempts to limit the range of ideas expressed in public discourse must be understood as a part of the Church's teaching mission. Indeed, as some Catholic analysts have noted, it would be impossible for the Church to generate a comprehensive list of all objectionable books, films, or other publications (Gardiner Reference Gardiner1958; Betten Reference Betten1935). Rather, the Index was intended as an exercise in guidance. The purpose of the Index was to provide examples of publications which would tempt believers to question tenets of the faith. Again, the carnal and prideful aspects of a corrupt human nature provide powerful temptations to qualify, modify, or abandon tenets of the true faith. The Catholic impulse to censorship becomes intelligible with the realization that objective truths (including moral truths) exist, that the understanding of such truths is elusive, and that humans are subject to strong temptations that can undermine the quest for what a Marxist might term “true consciousness.”

Although Islam lacks the strong, unified, hierarchical structure that characterizes Roman Catholicism, historical and contemporary Islam has also exhibited concern with the possible pernicious influence of false or harmful ideas. Indeed, much of contemporary Islamic discourse has focused on the issue of “blasphemy;” more specifically, satirical or profane depictions of the Prophet (Grubo Reference Grubo2015). The prevention of the defamation of Islam has been the focus of activity in a number of international organizations, including the Organization of Islamic Cooperation (OIC). The OIC has been an active voice in the United Nations and other international organizations attempting to protect the prestige and practice of Islam in various nations of the World.

At the collective level, anti-blasphemy measures are thought to protect the cultural autonomy of Muslim communities,Footnote ¹⁰ and to limit possible bases for discrimination against Islamic citizens in nations in which Muslims may constitute a minority (Council of Europe High Commissioner Report for Human Rights 2010). At the individual level, devout Muslims are subject to temptations of the flesh and of the intellect, which may weaken adherence to the authentic faith. As religious parents in virtually any tradition will attest, it is difficult to resist temptation in a highly individualist, even hedonist culture. Such difficulties are even more severe in cultural settings which are dominated by ideological commitments that deify individual prerogatives at the expense of shared beliefs and values.

Contemporary Islamic discourse does seem distinctive in its emphasis on blasphemy, which is often considered an anachronistic concept in much of Europe and North America (Grubo Reference Grubo2015). Put simply, ontology matters. Most variations of Islam (e.g., Shi'ite, Sunni, Sufi) emphasize the “vertical” dimension of religiosity (Benson and Williams Reference Benson and Williams1986), in which obligations to Allah are of prime importance. The importance of Shahada (monotheism and expression of acceptance of the unique authenticity of Muhammed's prophecy), Salat (frequency and style of prayer), Hajj (pilgrimage to Mecca) and Sawn (fasting during Ramadan) all involve the obligations humans owe to God, and all attest to the importance of theological beliefs about the nature of relations between the individual believer and umma within Islam. Challenges to the ontological commitments which Islam entails, or perhaps especially to the authenticity of the Prophet or the Prophet's revelation, may pose serious threats to the metaphysical basis of the ethical prescriptions and proscriptions of the Islamic tradition. Understood in this manner, cultural practices that may cause people to question or abandon their commitments to the ontology of Islam are not private matters, but may threaten the basis in which social and political life is conducted.

Despite important differences, the Catholic and Muslim perspectives on censorship have certain essential features in common. Most importantly, both traditions share a belief that the idea of complete freedom is illusory. People are necessarily subject to cognitive and affective limitations. The genuine choice is between self-prescribed adherence to an objective set of truths (which includes moral truths) or allegiance to corrupt or inferior carnal or intellectual temptations. Second, the path to moral freedom is narrow, and is fraught with danger and temptations. From the standpoint of the monotheistic traditions considered in this essay, Truth (capital T) exists, but is rendered elusive by flaws in human nature. From this, it may follow that enhancing the ability of citizens to discern Truth, and to attain moral freedom, is a legitimate public purpose, and is too important to be left to the private realm of mere “preferences” (Barry Reference Barry1990).

None of this, of course, provides definitive answers to the problem of censorship. Since at least Vatican II, Catholic doctrine has emphasized the idea that authentic religious belief must be freely chosen, which is quite consistent with the Qur'anic doctrine that there can be no legitimate coercion when it comes to religion (Chandler Reference Chandler2015). Thus, it is not clear why practices intended to provide moral freedom to believers can be, or should be, binding on citizens who fall outside a particular tradition. Self-government for believers at the individual level may be inconsistent with collective self-government in settings in which there exist multiple religious traditions, or multiple interpretations of a shared religious tradition. “Forcing [non-believers] to be free,” either through activities like the Inquisition or through stringent application of Shar'ia, seems almost comically paradoxical. Nevertheless, I hope to have shown that religiously-based arguments which support some limitations on freedom of expression, are intelligible, and are arguably consistent with some ideas of democratic self-governance. There is nothing necessarily self-contradictory about democracy (understood as the governing of individual and collective selves) and adherence to an authoritative religious tradition.

Further, taken to their logical conclusions, exclusive adherence to the censorship positions on censorship of Western liberalism, or monotheistic traditions such as Roman Catholicism or Islam, are ultimately self-defeating both empirically and normatively. From the standpoint of the liberal tradition, there is likely that unrestricted competitions among any and all ideas will (and do) ultimately lead to quasi-monopolistic intellectual “cartels” (see especially, Wills Reference Wills1971). Intellectual markets, like economic markets, are not inherently self-correcting, but often result in socially coercive and intellectually restrictive environments. Observers as diverse as de Tocqueville, Hartz (Reference Hartz1955), and Noelle-Neumann have noted that egalitarian democratic political cultures often result in the manifestation of an intellectual Gresham's Law, in which unpopular, but potentially meritorious, ideas are potentially driven out of circulation, and require special protection.Footnote ¹¹ Religious belief may provide a source of transcendent values whose expression is relatively well-protected from the social pressure of egalitarian secular cultures.

Conversely, the reification of religious belief and practice in coercive legal terms is beset with problems of its own, beyond the fact that religiously-based coercion is often incompatible with liberal priorities involving individual liberty and autonomy. Religiously motivated censorship can have results which are not compatible with the values of the faith tradition in question. Empirically, a good deal of research has suggested that religious belief and practice are reduced in nations and settings in which one tradition has a monopoly (either legally or culturally). Competition among religious traditions is regarded as a source of religious faith and participation.Footnote ¹² Thus, if religiously motivated religious leaders seek to enhance the public importance of religion beyond simple passive compliance, policies that restrict competition of alternative perspectives may be self-defeating.

Normatively, the identification of religious values with contemporary political institutions and practices runs the risk of promoting idolatry, by sanctifying human practices with apparently divine sanction. It is perhaps no accident that the content of divine revelations is necessarily incomplete, and may require interpretation or augmentation. While this assertion may be controversial to Christian or Muslim “fundamentalists,”Footnote ¹³ there is no such thing as “immaculate perception” in the reading of sacred texts. Glenn Tinder (Reference Tinder2000) has suggested that the core document of Christianity — the Gospels — are cast as narratives, rather than as prescriptions or proscriptions, and that this literary structure requires human interpretation. While the Qur'an lacks the narrative structure, applications of the core revelation of Islam may require elaboration, through such devices as the Hadith, to apply eternal religious principles to contemporary circumstances. This is the rationale underlying the concepts of maslaha (interests and welfare) and zarurat (in Farsi, “necessity.” See, Tamadonfar Reference Tamadonfar2015, 36–40), which allow for flexibility in the application of Islamic law in response to specific contingencies. Thus, even if the Qur'an or the Gospels are taken as divinely inspired and authoritative, the fact that these sacred books are implemented by fallible humans provides enormous possibilities for error.

APPLICATIONS

Thus, my argument so far has been that freedom of expression, even in secular liberal democracies, is an instrumental, rather than a categorical value. Rather than representing an absolute, non-negotiable “right,” the prerogative of free expression exists to enhance other values. Specifically, free expression is thought to enable the moral freedom which permits self-governance at the individual and collective levels. While the substance of authentic individual self-governance or self-determination in secular democracies may differ from concepts of moral freedom in Catholicism or Islam, all traditions allow for the possibility that some expression of ideas may subvert the project of the attainment of moral freedom. Under such circumstances, it may be permissible to restrict some acts of free expression in pursuit of these larger goals.

A couple of possible examples from the liberal democratic tradition may clarify my perspective. One such set of issues relates to policies at institutions of higher education in the United States to discourage or prohibit the expression of ideas that might reduce the educational opportunities for those students and faculty who may be included in the targets of such ideas. Thus, many campuses have prohibited overt expressions of racism, homophobia, or exclusionary nationalism. Others have attempted to create “safe spaces,” in which victims of possible discrimination can experience limited non-threatening ideational environments. Other institutions have encouraged faculty to include “trigger warnings” on course syllabi if the course in question is likely contain offensive or threatening material.

Of course, from the standpoint of classic First Amendment jurisprudence, such policies are virtually indefensible. Recent attacks on the concept of “political correctness” (witness the 2016 Presidential campaign in the United States) suggest that core values of liberal democracy have been sacrificed in the name of equality and diversity. If free expression is in fact a categorical value, such critiques of policies which restrict the expression of ideas on the basis of the content of those ideas are entirely correct. However, if free expression is regarded as an instrumental value, which exists to serve individual and collective self-governance, such policies may not always be inappropriate.

The classical, “Millian” defense of free expression is that the expression of unorthodox or unpopular ideas is that exposure to such notions is educative, and ideational diversity enhances the processes of deliberation and persuasion. However, such happy outcomes depend on the claim that both proponent and receiver of controversial ideas are to some extent receptive. If the assumption of receptivity is violated, the educative effects of free expression may be ameliorated. This may occur if there exists a substantial power disparity among the participants in a public discourse, or if the idea in question is so cognitively or psychologically central to the recipient that persuasion is not a practical option. For example, direct attacks on ascriptive characteristics such as race, gender, or sexual orientation seem unlikely to seem unlikely to convince their targets (students?) of the undesirability of being (say) African-American, female, or lesbian. Under such circumstances, the value of such potentially offensive speech may be offset by other values, such as equal access to educational opportunities or non-discrimination. Further, the expression of such hostile ideas may inhibit future intellectual exchanges. Such expression may be a “conversation stopper” rather than an invitation to extended ideational exchange and deliberation.

Obviously, the practical difficulties involved in implementing and enforcing such policies are quite formidable, to say. However, to object to such policies on legal or procedural grounds are to ignore the benefits of free expression, and such objections may violate the very norm of intellectual freedom that the objections were designed to protect. The expression of some ideas may inhibit, rather than enhance, intellectual competition in the “marketplace of ideas.”

An interesting application of the above considerations can be found in Tali Mendelberg's (Reference Mendelberg2001) insightful monograph, The Race Card. Using survey and experimental evidence, Mendelberg shows that campaign messages which make implicit appeals to racial prejudice are often effective, but more explicit racial appeals are not. Exposing the racial bias implied in such advertising seems to neutralize the coded nature of some campaign communications.Footnote ¹⁴

Ostensibly, this example would seem to justify the importance of free expression. A supporter of an unqualified right to free expression might argue that this example shows that the most effective response to pernicious speech is more speech. In unrestricted public debate, bad ideas can be counteracted by good ideas, and that sunlight, rather than suppression, is the optimal response to the expression of harmful or hurtful communications.

Such a response is certainly plausible, but would fail to take into account the contingent nature of Mendelberg's arguments and evidence. Mendelberg argues that the different levels of effectiveness of implicit and explicit racial appeals is based on two empirical generalizations: (1) Racial equality in the contemporary United States is normative, and explicit racist sentiments are not socially or politically acceptable, and (2) The norm of racial egalitarianism is incomplete, in that many Americans harbor racial prejudices and stereotypes. However, in very few public settings in the United States is the expression of such sentiments approved.Footnote ¹⁵

If, in another context, either of these generalizations did not obtain, it is far from clear that the salutary effects of free expression would result. If there were no social norm against overt expressions toward a particular target group, it is not obvious that calling attention to the prejudiced nature of group-based stereotypes would be an effective counter-strategy. If, for example, as seems likely, many Americans do not feel inhibited about expressing negative beliefs and feelings about Muslims, a charge of “bigotry” would likely be far less effective. The results of public discussion of the worthiness of Muslims as citizens of the United States pose an empirical question, and the likely outcome remains far from obvious. Thus, the findings of The Race Card, far from representing an exemplar of the benefits of untrammeled free expression, expose the (often fragile) contingencies on which the realization of such benefits may rest.

Such insights might be applied to the possible limitation of harmful ideas from the standpoint of Catholicism or Islam. While the response to the Charlie Hebdo incident was clearly disproportionate, it seems possible that a nation's legal system might provide for civil penalties for blasphemous speech that disparages certain religious groups. Such provisions could be based on the goals of promoting interfaith (or, more generally, intergroup) discourse, and might be consistent with the United States Supreme Court's ruling in Beauharnis v. Illinois (1952), which sanctioned legal action to counteract “group libel.” Such non-criminal measures could be narrowly drawn, and would, of course, be controversial in their limitations. However, the existence of such laws might reduce the potential for religiously-motivated violence, by providing legal recourse for religiously based grievances (see, George Reference George2016). Public officials seeking to limit the expression of exclusionary or offensive ideas could also use discretionary powers (such as public funding) to draw narrow exceptions to general support for free expression. For example, it might, in principle, be possible to deny funding from the National Endowment for the Arts to Robert Mapplethorpe's Piss Christ without endangering the entire scope of the First Amendment of the United States Constitution.

Naturally, such religiously-sensitive exceptions to the protection of free expression would be controversial in their formulation, and quite complex in their application. However, these features of civil censorship do not necessarily constitute objections. Indeed, a public discussion of why blasphemous images of Jesus, Mary, or Muhammed are offensive and discriminatory, and might well have a salutary effect on the mass public's understanding of these traditions. Such public controversies might also encourage members of minority religious communities to consider the ramifications of maintaining religious identity in a multi-cultural context. Moreover, such discussions would send an important signal to Catholics, Muslims (or whomever) that their grievances were being taken serious, and not being dismissed on procedural or legalistic grounds. What is of cardinal importance is the public, and perhaps authoritative, recognition that the expression of some ideas can debase, as well as enhance, the quality of democratic discourse. Conceivably, one result of such policies might be the extension of Mendelberg's norm of racial equality to anti-Muslim (or anti-Semitic, or anti-Catholic) ideas.

On the other side of the planet, in early 2017, the Supreme Court of India upheld a measure that would ban the use of candidate appeals to “religion, caste, community, or language” (Barry Reference Barry2017). Indeed, the Indian law is intended to reassert the fundamentally secular nature of the regime, and of the electoral process in particular, and the results of an election in which one or more parties violate this law can be voided (Safi Reference Safi2017).

Again, from the standpoint of observers who regard free expression as a categorical, unalienable, right, such a policy is clearly illegitimate. Moreover, the practical difficulties involved in enforcement seem overwhelming. Nevertheless, if free expression is an instrumental value, empowering mass publics to engage in self-governance, the principles underlying this controversial measure may be defensible.

Elections have multiple purposes. One of the most important functions of electoral institutions is that such structures provide the means for making peaceful, authoritative decisions about government personnel and (either directly or indirectly) public policies. However, it must be noted that elections have other purposes as well. Elections provide opportunities for public discourse and deliberation, and offer the possibility of persuasion. Put another way, elections are manifestly the means by which citizens in democracies govern themselves (and one another) collectively, but also provide opportunities for individual development and self-governance. Exposure to competing ideas seems more likely to enlighten and to educate than confrontation among competing identities.

If, hypothetically, electoral or partisan preferences in a particular polity were fixed along the lines of demographic, religious, or other ascriptive characteristics, election results would simply ratify the nature of the majority, or would be determined by differential levels of group mobilization. If persuading at least some voters to switch their party or candidate preferences were not a practical alternative, elections would not constitute a genuinely public choice, but would represent a Madisonian version of the “tyranny of the majority.” In such an election, it is not clear whether some groups, consigned to the status of permanent minorities, should accept such election outcomes as legitimate.

The current Indian policy of proscribing election appeals, whatever its practical difficulties, would seem to be an attempt to make public deliberation and persuasion in Indian election campaigns more likely. Apparently, one manifest purpose of the law would be to encourage parties and candidates in India to base their appeals on common (or at least potentially common) grounds, and to elevate campaign discourse above simple religious, class, or caste mobilization. Although it is far from clear that either the motives underlying the legislation, or its effects, are or will be benign,Footnote ¹⁶ or that authoritative limits on the content of campaign communications will be effective, the goal of providing opportunities for in election campaigns for public deliberation, persuasion, and, ultimately, individual self-governance. Is at least defensible.

My purpose in raising these examples is not to endorse the practice of censorship, but to suggest that, even in the context of secular liberal democracies, the broader goals underlying the value of free expression may be well served by selective content-based limitations on political speech in certain narrow contexts. Such limitations should not be dismissed on the basis of a priori, procedural, categorical grounds.