Discourse Ethics and Free Speech Jurisprudence

Abstract

<p>This thesis is an essay in normative jurisprudence. As such, it shares many of the concerns of moral and political philosophy. My approach to law is not a 'descriptive' endeavour, as is typical of the approach taken by legal positivists. Following Professor John Finnis, my aim is to "assist the practical reflections of those concerned to act, whether as judges, or as statesman, or as citizens". The natural law tradition is concerned primarily with the moral obligation aspect of law. That is, law in the 'binding of conscience' sense. Thus, a theme that dominates most natural law theories is reason. Rationality is a criterion for law ( 'law' in this sense). I argue that laws ought to be moral. This means that I must determine what is 'moral'. To accomplish this, I tum to the pragmatics of conversation (Jurgen Habermas). The practice of discourse has, by its very nature, a moral element. Or, to put it another way, discourse embraces a 'rationality'. This 'rationality' can shed light on what is 'moral'. If I had to summarise my argument in one sentence it would be as follows: one can infer rules for some just laws from the rules of discourse. One of the primary goals of this paper is to refute 'ethical relativism' or 'subjectivism'. Some human rights, I argue, are not the mere personal preference of Western liberal democracies, but are the implicit presuppositions of discourse. In attempting to show that a theory of natural law can find answers to difficult questions, I try to show that the ethics of discourse can guide us in considering the issue of freedom of expression. Should hate speech and pornography be censored? In assessing what the "common good" of a human community is, I argue that Canada's anti-hate speech legislation and anti-obscenity laws could undermine the democratic commitment.</p>