Liberté, Égalité, Fratenité #1

No sign of Tinker yet, but I read on-line at Askbaby.com that the prostaglandins in seamen are proven to increase the likelihood of you going into labour... So I have advised my sister to make haste and get herself down to the dockside as soon as possible.

Contrary to common misunderstanding, liberalism and egalitarianism do not automatically go hand in hand and one of the aims of these ramblings is to address this issue. However, in order to explain that properly, I am going to start by discussing an important example of when the aims of liberalism and egalitarianism coincided exactly. The following contains euphemisms of a adult nature, which are in fact very childish.

There was a time in Britain when no man could take a leisurely stroll up the Kyber Pass of an evening without the risk of arrest and imprisonment. This was a profound infringement on negative freedom; not being able to do what you like in the privacy of your own home. The laws in question actually applied to the act performed with men, women or animals, but were essentially used to prosecute homosexual men.

In 1957 the Wolfenden Report recommended the decriminalisation of using the servants' entrance and other male homosexual acts on the grounds that non-violent private practice between consenting adults caused no harm to anyone but (perhaps) the parties involved. Even then, any real or imagined harm individuals might bring on themselves was felt to be in a private moral sense, a matter of conscience for the individual, not the domain of criminal law.

This and many other UK legal decisions of the twentieth century adhered largely to John Stuart Mill’s Harm Principle. Basically this states that people should be allowed to do whatever they like without interference, the only condition being that their actions are not harmful to other non-consenting parties. A search for the best summary of this landed on this blog entry at Philosophy, et cetera. I could write an essay or too on this myself (indeed, I was obliged to some years ago) but the link is very good if you're interested.

As everyone knows, the recommendations of the Wolfenden Report were realised in law ten years later, which was a little too late for some (In between the Chatterley ban and the Beatle's White album).

In opposition to the Wolfenden Report were the likes of Lord Devlin and his famous man on the Clapham omnibus. He argued that any threat to public morality is a threat to society itself, and that public morality is, at least in part, defined by the feelings of an ordinary reasonable man. This reasonable man, who happens to be riding the omnibus to Clapham Common, presumably having found himself out of luck on Hamstead Heath…

In a sense, Devlin’s argument was for positive freedom. He was not suggesting that male homosexuality was against nature or against the Word of God and ought to remain criminal on those grounds.

Instead, imagine that this man on the Clapham Omnibus was both disgusted and preoccupied by the idea of male homosexuality. The mere idea that this might be happening caused him to be very upset and confused about his place in the world. In order to allow people the freedom to go through life undisturbed by morally corrosive thoughts of naked men giving vigorous consent in the privacy of their own homes… we must infringe upon the negative liberties of a minority.

However, this argument is very weak. For one thing, any argument that involves a reasonable person or a reasonable idea is circular. If I say, a reasonable person prefers jam to marmalade then my defining criteria for reasonable person would have to include a preference for jam over marmalade.

Secondly, there are perhaps many private behaviours which different non-participants would find abhorrent – certain religious practices for example, are entirely blasphemous to members of other religions. And whilst Devlin did use the phrase public morality, what he was talking about was private behaviour - he wasn't talking about anything that non-participants would be subjected to in any way.

Unchanging uniformity in private sexual practices, family life, religious belief and so on does not seem a particularly viable or desirable objective. Of course, the law steps in when someone is being subject to violence or abuse, and we have the institution of marriage and now civil partnership which provides certain securities in civil law (not criminal law). However, it would be a truly totalitarian world in which private behaviours were more closely regulated.

Right, well, these are important arguments and a very important precedent which I shall refer back to later. However, the vast majority of egalitarianism is concerned not with negative freedom, but with positive freedom; to be one's own master.

Once we achieved basic negative freedoms for women and minority groups which mean we are no longer literally or virtually enslaved, the chasm that lies between that point and the point where we become our own masters is all about positive freedom. And that's where, in some cases, liberalism clashes with some of the strategies employed to bring equality about...


This blog was originally entitled Liberté, Égalité, Enculé, but I am always afraid to swear in a foreign language in case it is much much ruder than I imagine it is.