The arguments for free speech in current debates are almost exclusively based on a principal of utility. Simply put, free speech will result in benefits for society. Those acquainted with the academic discourse on free speech are likely to appeal to J.S. Mill’s utilitarian arguments which he summarises in four points. In brief, to suppress all beliefs in favour of one held to be the truth, presupposes infallible judgement. No one and no group is infallible. Thus the clash of many opinions is the way to the truth. That presupposes free speech. If people reason their way to true belief, they will not hold that belief by prejudging – not as a prejudice.
If arguments from pure utility are unconvincing for some, one can also mount a Burkean defence of free speech incorporating an idea of utility, but one drawn from man’s nature rather than resting solely on a principle of utility. There are two crucial passages in Burke that provide the basis. The first is in the Reflections:
[Without civil society] man could not by any possibility arrive at the perfection of which is nature is capable, nor even make a remote and faint approach to it… He who gave our nature to be perfected by our virtue, willed also the necessary means of its perfection – He will therefore the state – He willed its connection with the source and the original archetype of all perfection.
The second is in the Appeal:
The state of civil society… is a state of nature; and much more truly so than a savage incoherent mode of life. For man is by nature reasonable; and he is never perfectly in his natural state, but when he is placed where reason many be best cultivated, and most predominates.
These passages constitute Burke’s refutation of the state of nature arguments of Hobbes, Locke, Paine and others, but they can be extended to defend free speech within the limits of the natural law. The basic argument is that man as a being with moral consciousness and a perception of the natural law needs to be in community with other such beings in order for that consciousness and perception to operate. But it is not a question of mere operation. A being in community with others and with a consciousness of right and wrong naturally seeks what’s right and avoids what’s wrong.
It is therefore in man’s nature to seek to perfect his idea of right and wrong, of good and evil, and act accordingly. Because acting follows perception and judgment, it is of the utmost importance that perception and judgement be continually developed and refined. Such development and refinement take place through expression and communication within a society of fellow moral agents and must logically be allowed a freedom within the broadest limits. Perfection of man’s moral being entails a moral discourse of explanation, propagation, admonishment and reproof. And, of course, the necessarily unimpeded moral discourse of a society of moral agents presupposes the deployment of reason, that essential part of man’s nature. Thus inherent in man’s nature is the right to free speech.
Let me now look at an extended exposition of Burke’s idea of rights and see how it ties in with the two passages above.
‘ART IS MAN’S NATURE’
According to Edmund Burke, the world we live in is ordered, stable and intelligible. It is an intelligible framework where ‘the stable and eternal rules of justice and reason’ (Reflections) prescribe the way. We creatures of reason are an active integral part in that ordered intelligible world. Because we are gifted with reason and because we are active in community (community is presupposed) we recognise a natural moral law oversees this world. Recognising the natural moral law, we are obliged to follow it for our good and for the good of the particular community we are part of. To go against that which reason dictates, is to act with unreason.
Reasoning about the issues of community – politics – therefore has the aim of achieving the good for society. Political issues are issues about good and evil, about promoting the good and eliminating evil, or as Burke frequently formulates it, making arrangements that provide benefits, convenience and happiness over harm, inconvenience, and unhappiness.
‘Political problems do not primarily concern truth or falsehood. They relate to good or evil.’ An Appeal from the New to the Old Whigs (1791)
It is the good of the commonwealth that political reasoning concerns itself with.
Reasoning about political problems is about applying prudential judgement. The application of prudence is called for because a particular concrete issue has a myriad of concrete features which any a priori political theory cannot satisfactorily deal with, simply because abstract theory disconnects the political actor from the concrete circumstances. Political issues are always connected to the concrete.
[Abstract questions] must be embodied in circumstances… things are right and wrong, morally speaking, only by their relation and connexion with other things…
Notes for a speech in the Commons (1792)
But because our reason participates in the ordering of an ordered intelligible world, the sorting of the moral and political data of a problem must take place within natural law. It must be so for a resolution to be legitimate and ultimately effective. The political actor must synthesize the detail of the political problem with the framework of the moral law to arrive at a single judgement.
Circumstances perpetually variable, directing a moral prudence and discretion, the general principles of which never vary, must alone prescribe a conduct fitting on such occasions.
Remarks on the Policy of the Allies (1793)
There is one more feature of political reasoning that needs to be mentioned in this brief overview of Burke’s idea of political reasoning before we apply it to his concept of rights. It is the place – or rather the standard – of natural feeling in political reasoning:
The happiness or misery of mankind, estimated by their feelings and sentiments, and not by any theories of their rights, is and ought to be, the standard for the conduct of legislators towards the people.’
Annual Register (1759)
Each individual is born with instincts about good and evil behaviour – or compassionate or pitiless, beneficent or harmful, behaviour. This seems evident because we are born into the basic human community – the family. These instincts are inclinations; they are preverbal. They are not yet verbal determinations of the natural law. They are direction-giving in our relations with others. Burke says that such natural feelings or inclinations, even in their preverbal state, take priority over abstract theory in moral and political judgements. When our feelings in the concrete circumstances, he says, go against our (abstract) theories, it is our feelings that take priority over the conclusions from the premises of the abstract theory.
With such things [the French revolutionaries’ violence] before our eyes, our feelings contradict our theories; and when this is the case, the feelings are true, and the theory is false.
An Appeal from the New to the Old Whigs (1791)
When it comes to society, the wise legislator, says Burke, works at ‘improving instincts into morals and grafting our virtues onto the stock on natural feeling.’ This is the point at which those instincts are aroused enough to be verbalised and then ratified by reason, reason here being the narrow understanding as a mathematical process. That verbalising may then lead to the establishment of custom or the enactment of the positive law of the state. The full extent of human reasoning for Burke is thus a cooperation between the deductive and inductive processes and natural moral feeling, all overseen by the individual’s exposure to the natural law.
If man’s moral reasoning, governed by the natural law, leads to concrete outcomes, those outcomes in the form of law or tradition are not directly derived from the natural law. Burke, says Canavan,
saw the natural law as mediated to society through its traditions, its institutions, and its positive law. The public order within which men sought their common welfare and pursued their private interests was not constituted and regulated directly by the natural law as such. The creation and maintenance of the public order was rather the function of the positive law of the state, applying the supreme norms of natural law according to the rules of prudence.
(Canavan, The Political Reason of Edmund Burke, p. 85)
Where does Burke’s idea of natural rights or freedoms fit in with this? I will come to that question shortly.
At this point we arrive back at the proposition that man’s essential features of reason and moral judgment make civil society his natural state. Civil society provides the essential arena for him to perfect his moral reasoning. Burke has thus a teleological view of man and society. (Teleology is the belief that purpose and design are a part of or are apparent in nature).
In contrast with this teleological view of man and society, Burke’s opponents developed a static conception of the individual’s natural state. They imagined each individual was born into a pre-political state of nature where each person was autonomous – enjoyed unbounded rights. But there were dangers in remaining in this state of nature. It was perceived that in electing to band together in society the gain would be the security and positive conveniences established. The aim in banding together was to preserve individual man’s autonomous status but at the same time create an authority all would obey. The solution was a compact or agreement with a sovereign authority. The individual would cede certain limited rights to a sovereign and the sovereign would provide security and well-being in exchange. If the compact was broken, the individual returned to the full enjoyment of his rights in the state of nature. The state of nature theories were about abstract individual subjective rights argued a priori.
Now Burke did not deny the existence of original natural rights, although, as Canavan points out, he could have. He could have dismissed the idea of a pre-political state of state as preposterous. No, he accepted the existence of abstract natural rights in the state of nature, but claimed they were not relevant in the practical activity of guiding the commonwealth.
If we return to Canavan’s contention that Burke did not think the natural law directly regulated society but was mediated to it by its traditions, institutions and positive law, we have a lead to the way Burke conceived natural rights in opposition to those arguing for natural rights from an (abstract) original pre-political state of nature.
The creation of traditions and institution happens over time in response to particular concrete circumstances of a people. The response forms the people into a corporation over time. The forming of a people into an enduring corporation entails an objective obligation to maintain the corporation as a binding contract. Burke went so far as to say that society so created formed a contract that bound the living, the dead, and those to come. The crucial point that flows from this is that although there is a natural impulse in man to be in society, society itself is a particular artificial creation. In An Appeal from the New to the Old Whigs Burke made it clear what he meant:
In a state of rude nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of a people is the idea of a corporation. It is wholly artificial; and made like all other legal fictions by common agreement.
In the same pamphlet Burke made the crucial claim that ‘art is man’s nature.’ Although accepting the idea of original rights, Burke said that the abstract rights of men are made concrete in the creation in history of a particular civil society. The benefits and advantages concretely created in civil society become then the actual rights of men. They become rights with meaning in the political process. But because all good is of itself subject to the natural law, as I have argued for Burke, such actual rights – the benefits of civil society – are linked to the original right in the framework of the natural law. The unbreakable linkage to the natural law ensures that actual rights in a particular society are not thought of as a good only relative to that particular society. Burke thus escapes moral subjectivism and cultural relativism. This understanding of natural rights disqualifies rights argued rationalistically, and no more. Original rights, if they did exist, lost that quality when they were taken up and modified in civil society. Political and social problems cannot be decided by an appeal to abstract rights that have no function outside civil society, that is, rights that have no social context.
Burke’s distinction between original and concrete civil rights are clarified in his short comment on the right to property in the Report on the Lords’ Journals (1794):
Now although property is itself not, yet almost every thing concerning property, and all its modifications, is of artificial contrivance.
Burke makes here a crucial distinction for his idea of legitimate rights. ‘Property is a natural, not an artificial, right,’ says Canavan. ‘Yet if this natural right is to be exercised in an organised society, conventional rules must be drawn up to define what constitutes the ownership of property, what are the limits of its lawful use, how it is to be transferred or passed on by inheritance…’, etc.
All natural or original rights, as Burke understood them, undergo modification when concretised in a particular social context, but the gap between the concrete modification of the right to property and its abstract expression is far more narrow than other rights. Burke might have given the same category to the right to free speech as he does to property. Both are supreme rights inherent in the nature of the human person. Human nature cannot be thought of without the ability to reason and to give expression to that reasoning, and without the availability of material means to live.
Much of the argument I have proposed here has been drawn from Francis Canavan SJ’s The Political Reason of Edmund Burke, chapter 4 ‘The Social Order.’