Societies in the Western world exhibit a common commitment to an egalitarian philosophy of government. This philosophy assumes that all members of society sit on a plane of moral equality. Likewise, it assumes that those who wield the levers of political power should strive to fashion legal and political institutions that defensibly accommodate the interests of all those who are affected by their operations. This being so, the egalitarian philosophy of government has to do with the pursuit of distributive justice. Those who pursue this ideal take on a task that is fraught with difficulty. This is because distributive justice is underdeterminate: that is, it is open to a range of defensible interpretations. This difficulty haunts the pages of Esther Janssen's Faith in Public Debate: on freedom of expression, hate speech and religion in France & The Netherlands. For Janssen examines responses, at the level of the nation-state, to the problems with which she grapples. Each of these responses expresses a commitment to the egalitarian philosophy of government. Yet there are significant differences between them. Janssen's answer to this state of affairs is to seek to extract from French law, Dutch law and the jurisprudence of the European Court of Human Rights a set of ‘tools’ that will enhance consistency ‘within existing approaches’ to hate speech (p 513). For reasons we will explore below, we can bring the limitations of this approach into view by drawing on the political philosophy of Isaiah Berlin.

While Janssen's central focus is on Dutch and French law, her exposition is wide-ranging. It encompasses the right to free expression (and how it is understood in, for example, the USA), relevant jurisprudence of the European Court of Human Rights (on, for example, the margin of appreciation of doctrine) and public international law more generally (such as the International Covenant on the Elimination of all Forms of Discrimination). Janssen also dwells on the difficulties involved in drawing a distinction between legitimate criticism of ‘the tenets, dogmas, doctrines, practices, rituals, offices and institutions’ of a religion and expressive assaults on the individuals who practise a particular faith (p 60). When she turns to Dutch and French law, she gives close attention to litigation in which controversy has attended efforts to draw this distinction. For example, she examines a case that concerned the leader of the Dutch Freedom Party, Geert Wilders, who had, among other things, urged his followers to ‘Stop the tsunami of Islamization’ (p 3). The Public Prosecutor dismissed this case in 2008, while Amsterdam's Court of Appeal concluded that Wilders should face prosecution for incitement to hatred. Thereafter, a district court in Amsterdam acquitted Wilders and rejected civil claims against him. As well as considering relevant litigation, Janssen alerts her readers to differences between the operations of Dutch and French law. For example, she contrasts French ‘legalism’ (and ‘fear of free judicial interpretation’) with ‘more open norms’ in The Netherlands (p 515).

Janssen tells us that her ‘central research question’ is to determine the extent to which it is possible to place ‘consistent’ restrictions on hate speech in the religiously focused sub-field she surveys. Her use of the term ‘consistent’ might suggest that she is interested in promoting a common response to the problem with which she contends. However, she is at pains to point out that it is not her aim to fasten on to an approach that would be ‘conclusive’ in France, The Netherlands and elsewhere (p 513). Rather, she aims to fashion ‘tools’ that present those who seek to counter the problem of hate speech with guides to action. They should put in place legal norms that specify ‘as precisely as possible’ modes of expression that are subject to legal sanctions (p 540). Likewise, lawmakers should pin down in precise terms the interests and rights that prohibitions on hate speech secure. Useful as these and her other practical pointers are, Janssen does not define hate speech with the degree of precision necessary to ensure that the right to free expression enjoys strong protection. She might, for example, have sought to isolate features of such expressive activity that make it possible to identify a central case of hate speech. Such a central case might yield a rather narrow definition (see, for example, R Mullender, ‘Hate speech, human rights, and G.W.F. Hegel’ in T Cushman (ed), Handbook of Human Rights (New York, 2012), ch 4, identifying hate, intention, an invidious ground, harm or the attempt to cause harm, and political significance as features of hate speech).Footnote ⁵ But against this must be set the fact that definitional precision affords a means to the end of consistency.

Janssen's lack of precision on the question as to how we should define hate speech is not the only ground on which she invites criticism. So too does her assumption that it is possible to engage in a ‘substantial balancing act’ as between freedom of expression-related arguments and those that countervail them (p 513). These considerations may be incommensurable, namely not amenable to ranking on a common scale. In such circumstances, Isaiah Berlin argues that we may find a guide to action in ‘the general pattern of life in which we believe’.Footnote ⁶ But when we apply this point to France and The Netherlands, we encounter a difficulty. For they, and other west European states, are egalitarian contexts in which lawmakers strive to establish a fair balance between sources of positive value (such as free expression and countervailing arguments that concern human dignity).

Ultimately, efforts at the national level to establish such a fair balance reflect what Victor Klemperer identified as the ‘humanitarianism’ of ‘the European spirit’.Footnote ⁷ Here, we seem to encounter a ‘general pattern of life’ that seeks to accommodate competing arguments that are at once morally appealing and resistant to ranking. In such a context, consistency seems unlikely. Moreover, those who take seriously the ‘general pattern of life’ on which we are focusing may fall victim to aporia: the sense of being at a loss in the face of practical difficulty. Janssen's efforts to advance the agenda of consistency in a non-’conclusive’ way suggest that she is wrestling with an impassable difficulty.

These points suggest that the ‘substantial balancing act’ that Janssen describes is a pathway back into the territory out of which she seeks to lead lawmakers and legal officials in France, The Netherlands and elsewhere. We might describe this territory as a murky Land of Good Things in which west European states seek to give expression to the egalitarian philosophy of government by securing all relevant sources of positive value. Their efforts to do this prompt their critics to argue that they are ‘wholly confused’.Footnote ⁸ While this criticism is overstated, the European Court of Human Rights (ECtHR) is clearly aware of the difficulties involved in seeking to achieve such an accommodation of interests. This awareness finds expression in the Court's margin of appreciation doctrine. As Janssen notes, the ECtHR has applied this doctrine, in the area she surveys, in ways that recognise that states enjoy ‘a large margin’ or (to put the same point another way) wide discretion (p 83). The Court justifies this approach by reference to the consideration that states are ‘in direct and continuous contact with the vital forces’ at work in the societies where they exercise legal power.Footnote ⁹

Since Janssen published Faith in Reason, populism on the extreme model exemplified by Geert Wilders has ‘remained on an upward trajectory’.Footnote ¹⁰ This is true notwithstanding the fact that a Dutch court found Wilders guilty of insulting Dutch Moroccans in 2016. Moreover, the populism that has gained traction in western Europe may, in the years ahead, find more extreme expression in eastern Europe, where ‘The publics are considerably less tolerant’.Footnote ¹¹ Thus we find ourselves in a context where the concerns that Janssen lays before her readers are gaining urgency and the tools she describes have obvious practical relevance. However, it is by no means obvious that these tools will promote the consistency that is her central concern. If we see consistency as our most pressing concern, a clear definition of what we mean by hate speech seems to be the most obvious pathway out of the murky territory that Janssen explores. It is certainly a concern to which she should have devoted closer attention.