Tag Archives: Dignity

Freedom of the Press – Two Concepts



Within Western democracies there exists a well-established agreement on the importance of a free press, which figures prominently in their constitutions since the nineteenth century. However, disagreement emerged as soon as the limits of this freedom had to be defined. As much as everyone agreed on the necessity of having limits, there seemed to be no accord on where these limits should be. The history of freedom of the press is a history of the debates on the limits and borders of a free press.[1]

There is no “original meaning of freedom of the press,”[2] a formula which is often used in order to give weight to an argument. Our modern understanding of freedom of the press is the result of different historic developments and philosophical ideas from the nineteenth century, which explain the different limits for a free press in the twenty-first century.

In the western world, the two main reasons for limiting freedom of the press are defending state interests and/or personal rights. There is a stronger emphasis in the Anglo-American world towards limiting the free press for reasons of state security than in the Federal Republic of Germany and vice versa when personal rights where are involved. In the first decades after the war, these differences did not play an important role as long the Cold War had a unifying impact on western societies, but with the end of the Cold War differences became apparent. The different perceptions on the limits of a free press were the result of two arguments used in the eighteenth and nineteenth centuries for justifying a free press combined with a different historical context. By tracing the debate in the English-speaking world and in Germany, these two different arguments will become visible.

In 1644 the debate for freedom of expression started in modern times thanks to John Milton’s Areopagitica, where he still argued about God in order to justify his quest for freedom. With the enlightenment God lost his unifying role for society and could no longer serve as justification. Two arguments were brought then forward to justify freedom of the press: One by the continental movement of the enlightenment; the other from within the movement of utilitarianism, and most influentially by John Stuart Mill. Both underlined the importance of truth; however, they differed in their understanding on what truth was good for. This difference in their arguments had a lasting impact on the debate of the limits of freedom of the press. 



Freedom of speech and its limits

Formally the argument for free speech or free press[3] has been the same since John Milton’s time. Freedom was seen as a necessary means of realizing an aim for which wide social acceptance existed.  Milton needed to justify his quest for freedom of expression with an argument understandable to his contemporaries and for a man of the seventeenth century only God provided the basis for this argument. It was Milton´s challenge to connect freedom of expression to God. He did it in two ways. Firstly, in a purely rhetorical way, he linked censorship to the Catholic Church, reminding his reader that it was their invention and therefore unworthy of a country such as England.[4] This argument sounded convincing in a society where he could be sure that the Catholic Church was seen as an enemy. In his second more sophisticated argument, he linked truth to God: “Truth is strong, next to the Almighty”[5] and argued that it is our duty to God to seek truth.[6]

A large part of his argument was dedicated to demonstrating that freedom of expression was necessary to searching for truth. The role of freedom as a means for reaching a higher aim became evident when he set its limits. Freedom, he pointed out, was not intended for “popery, and open superstition”[7]. In other words, as the Catholic Church could not, for Milton, contribute towards truth-finding, they had no right to publicity. For him, the Catholic Church, described as the most “anti-Christian”[8] institution, was by definition excluded from enjoying any freedom of expression.

More broadly, however, Milton outlined with this text the construction of the argument for a free press. In the eighteenth and nineteenth century the argument was the same; only God needed to be replaced with something else.



The English way

When Milton wrote Areopagitica, the newspaper had just been invented and it was not so much the journalist – a profession which did not exist in his time – whose freedom he had in mind, but more the righteous intellectual like himself. It was only in the nineteenth century that the newspaper became mass media and the debate on freedom of expression was led under the headline of freedom of the press. The newspaper could hardly be linked to the promotion of God’s truth and, due to the enlightenment, God as an ultimate justification could no more be taken for granted. The argument that Milton had brought forward needed therefore to be adapted to the changing times.

James Mill is a good example on how to do so, by replacing God with the social goals of utilitarianism. As a good friend of Jeremy Bentham, he believed utilitarianism would provide the ultimate fundament for society. In his 1823 essay Liberty of the Press he appealed first of all to common sense, such that everyone must be convinced that a society based on moral principles would achieve the highest happiness for all, which is the crucial criterion of utilitarian ethics. He needed to emphasize this since, unlike Milton, he had to justify the aim that he was striving for, whereas Milton, as a religious man of his time, was able to take God for granted.

However, just like Milton, he had to connect freedom of the press to the best possible society:  

We may then ask, if there are any possible means by which the people can make a good choice, besides the liberty of the press? The very foundation of a good choice is knowledge. The fuller and more perfect the knowledge, the better the chance, where all sinister interest is absent, of a good choice. How can the people receive the most perfect knowledge relative to the characters of those who present themselves to their choice, but by information conveyed freely, and without reserve, from one to another? There is another use of the freedom of the press, no less deserving the most profound attention, that of making known the conduct of the individuals who have been chosen. This latter service is of so much importance, that upon it the whole value of the former depends.[9]


James Mill – like Milton before him – saw a link between knowledge and freedom. The results of the last Pisa survey seemed not to suggest this, though. The difference vis-à-vis Milton consists in knowledge no longer serving God but allowing the creation of the ideal society.[10] An ideal society being for him a moral society and the freedom of the press promoting morality, since the individual would be scared that his sinful ways could be exposed to the public[11]

Everybody believes and proclaims, that the universal practice of the moral virtues would ensure the highest measure of human happiness; no one doubts that the misery which, to so deplorable a degree, overspreads the globe, while men injure men, and instead of helping and benefiting, supplant, defraud, mislead, pillage, and oppress, one another, would thus be nearly exterminated, and something better than the dreams of the golden age would be realized upon earth. Toward the attainment of this most desirable state of things, nothing in the world is capable of contributing so much as the full exercise of truth upon all immoral actions.[12]


In his argument he could no longer refer to religious authority; he had to refer instead to the intellectual authorities of his time in order to strengthen his position.[13] Like Milton, the aim he strived for defined the limits of the freedom:  

It will be said, however, that though all opinions may be delivered, and the grounds of them stated, it must be done in calm and gentle language. Vehement expressions, all words and phrases calculated to inflame, may justly be regarded as indecent, because they have a tendency rather to pervert than rectify the judgment.[14]


His argument sounds in the twenty-first century rather weak since it might provide reason for censorship instead for a free press. Any front-page of the yellow press might fail James Mill’s criteria for decency. 

It was left to his son John Stuart Mill to provide the argument with the biggest impact to the debate. Without the moral tone of his father argued for the necessity of a free press in order to create the best possible society. And his text On Liberty provided the printing press with the argument against “stamp duty” and censorship:

If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.


The printing press in England got with Mill a moral justification for their business. And they needed it, since the reputation of the journalist in the beginning of the nineteenth century was rather low seen as a “greedy adventurer”. With Mill they could claim an important social role in the society. By promoting the idea that the media was the fourth estate, a watchdog for the public interest and a speaker of public opinion a remarkable change occurred in the nineteenth century in England – the once distrusted media became an important and recognized player in society. Of course Mill himself was interested in it, since he saw the media also as a tool to promote his ideas as George Boyce concluded: “Like many political philosophers, the Utilitarians directed their ideas to a practical aim; and not only did they provide the press with an ideology but they also had contacts with the press which enabled them to advance their principles.”[15]

Even when it was obvious that the development and use of the freedom was not conducted in “calm and gentle language” as his father James had thought “the myth of the Forth estate continued to prosper” [16].



The struggle in Germany

The debate in Germany differed for a number of reasons: first of all Utilitarianism was never a strong philosophical or political movement in Germany. Mill wanted to reform English society with his liberal ideas, while Hegel left this to the Weltgeist. Nietzsche made it clear what he thought of a philosophy striving for happiness: “Man does not strive for pleasure; only the Englishman does.”[17]

Also early German contributions to the debate of press freedom were emerging from the Romantic Movement, and as in the case of Ludwig Börne, had little practical impact:

Public opinion is not the friend of the established order of the bourgeois society, and that makes the freedom of speech all the more necessary. Public opinion is a lake, which, if you curb him and put stays as long rises until he falls foaming over his place, flooded the land and sweeps everything away by itself. But where he is given an unimpeded run because it breaks up into a thousand streams varied speech and writing, which, peaceful flowing through the land, irrigate and fertilize it . The governments that suppress freedom of speech, because the truths they spread, they are annoying, make it as little children, which shut the eyes to be seen. Fruitless efforts! Where the Living Word is feared, since the death of the troubled soul will not bring peace. The ghost of the murdered thoughts frighten the suspicious prosecutor who slew them, no less than this even done in life. The free flow of public opinion, whose waves are the days writings , is the German Rubicon on which bore the lust for power and might ponder whether they pass him and take the expensive country and the world with him in bloody mess , or whether they themselves to defeat and stick out.[18] 


Even if it is beautifully written, the Weltgeist didn’t think Germany ready for it. When social reformers such as Karl Marx and Ferdinand Lassalle, in the middle of the nineteenth century, had finally an impact on society, it was not possible to integrate their ideas into a common struggle for freedom of the press as was the case in England.

In England Mill’s ideas could be integrated and taken up by the media as the Utilitarians provided the press with the arguments needed for claiming their role as the fourth estate. In Germany social reformers positioned themselves in opposition to the press and provided the press with arguments to reject their ideas. Ferdinand Lassalle, one of the founders of the workers’ movement in Germany, claimed: “Our main enemy, the main enemy of the healthy development of the German spirit and the German people, is the press nowadays. (…) Its mendacity, their depravity, their immorality is only outbid by nothing other than perhaps by its ignorance. “[19]

Calling the work of the journalist “prostitution of the spirit”[20] might not have helped improve his standing in the media world. So when Lassalle like Mill called for a free press, the publishing houses were as much on the alert as the government, since he saw not only state interference as a problem, but he questioned also the impact of business interests on freedom of the press: “If someone wants to make money, he may fabricate cotton or cloth or play on the stock market. But that for the sake of filthy gain one is ready to poisoning all the fountains of the spirit of the people and serves the people their spiritual death daily from a thousand tubes – it is the highest crime I can imagine.” [21]

He wished to free the press from advertisements, since he saw in the economic strength of the media an obstacle to its freedom. Lassalle was therefore in line with Karl Marx, who defended freedom of the press in his early writings, underlying that “that the first freedom of the press is not being a business. The writer which degrades it to a material mean deserves as a punishment for this inner lack of freedom also the outer lack of freedom, the censor.”[22] The publisher of the nineteenth century who turned printing into an enterprise could not have taken Börne, Marx or Lassalle on board in their struggle for a free press.



Kant’s heritage

There is however one German philosopher who has had a lasting impact on the debate and on the perception of freedom of the press in Germany: Immanuel Kant. Kant’s argument differs fundamentally from John Stuart Mill’s. Mill is interested in negative freedom, which means absence of regulation to ensure the best possible society; while Kant’s concern is positive freedom,[23] having an enlightened individual able to accept laws made through rational choice. Therefore Kant called for the Enlightenment so that “Man’s emergence from his self-incurred immaturity” could occur[24]. For Kant this immaturity kept man unfree. In order to achieve enlightenment, Kant asked for the free use of reason: “And the freedom in question is the most innocuous form of all freedom to make public use of one’s reason in all matters.”[25] However, Kant’s practical suggestion to allow “public use of one’s reason” is a means; the liberated self is the aim. The debate in the Mittwochsgesellschaft  one of the most important German societies in the eighteenth century that promoted enlightenment – showed this when one of the members concluded: “I believe completely unlimited press freedom would surely be misused, most by the unenlightened, and it cannot therefore be a means of enlightenment.”[26] The members of the society wanted to promote enlightenment and the debate about freedom of the press centered on the question of the extent to which freedom of press might be a means to achieve it.

When, after the first World War, the Weimar republic created its first democratic constitution, freedom of the press was included; however, as Jürgen Wilke remarked:  “In this respect, one can say that although the idea of freedom of expression as a human right entered the Weimar Constitution, but not its traditional utilitarian justification.”[27] 

After the Second World War and its dramatic experiences, the Kantian categorical imperative to treat man “never merely as a means to an end, but always at the same time as an end” did materialize by having the “dignity of man” as the first article of the German Basic Law. In a study by Katja Stamm concerning the judgments of the highest courts in Germany, she pointed out that of course press freedom was recognized as a necessity for a functional democratic society, but it also emphasized this Kantian heritage in seeing the value “freedom of expression for the individual development of the personality.”[28]

There is the explanation for German judges limiting freedom of the press when it threatened dignity e.g. as in the case of hate-speech, while for example in the English-speaking world David Irving with his denying of the Holocaust was described as a “free speech martyr”.[29]

It also explains the different reactions to the latest National Security Agencies revelations. Living in a Benthamite panopticum might be safe and happy and, as the British tabloid journalist Paul McMullan expressed it, “Privacy is for peados,”[30] but it signals equally the end of the Kantian autonomous individual.




The discussion of free press in the English-speaking world is about the correct interpretation of John Stuart Mill. In the recently published Free speech. A very short introduction, by Oxford University Press, Mill figures prominently and his ideas are getting a whole chapter in it, while Kant is never mentioned. Contrary to a recently published Eine Ideengeschichte der Freiheit, where Mill is mentioned 23 times, compared to Kant’s 457.

The Kantian link between negative freedom as one’s use of reason in public to the idea of the autonomous individual, which is always an end to itself and cannot be a just a means for a utilitarian better society, allows German journalists and editors to have a self-regulation in place where they underline this Kantian idea of “preservation of human dignity”. The first article of the German journalist code of ethics reads therefore: “Respect for the truth, preservation of human dignity and accurate informing of the public are the overriding principles of the press.”[31] 

In the US, the Hutchins Commission concluded already in 1947 that “Freedom of the press for the coming period can only continue as an accountable freedom. Its moral right will be conditioned on its acceptance of this accountability. Its legal right will stand unaltered as its moral duty is performed.”[32] However, instead of following the findings of the commission, twenty years later freedom of expression was the winning argument for Larry Flint in the legal battle for publications of pornography.

State security, however, seemed to be to a much wider extent an acceptable reason for interfering with press freedom in Britain than in Germany. In 2007 the prosecutors dropped all charges against 17 journalists in Germany for disclosing state secrets, while in England in the same year David Keogh and Leo O’Connor were “jailed under the Official Secret Act 1989 for leaking a secret memo detailing discussions between Tony Blair and George Bush in August 2004 about an alleged American proposal to bomb the Arabic television channel al-Jazeere.”[33]

The differences between the German- and the English-speaking will increase as freedom versus security and privacy continue to be seen under either a Kantian or Millian view.


[1] This was pointed out by Friedrich von Gentz already in 1838: “Die große Spaltung der Meinung hebt erst an, wenn die Frage aufgeworfen wird, welche Art gesetzlicher Schranken die beste und zweckmäßigste sei, um in Rücksicht auf den Gebrauch der Presse, das Interesse der Gesamtheit zu sichern, ohne die Freiheit der Einzelnen zu zerstören.“ Friedrich von Gentz, Die Pre?freiheit in England, 1838, in: Pressefreiheit, p. 144.

[2]  A formula which gives you thousands of search results on google.

[3] I do not distinguish in this paper between freedom of press and freedom of expression as it is not valid for the argument made in this paper.

[4] After which time the Popes of Rome, engrossing what they pleased of political rule into their own hands, extended their dominion over men’s eyes, as they had before over their judgments, burning and prohibiting to be read what they fancied not;(…) And thus ye have the inventors and the original of book-licensing ripped up and drawn as lineally as any pedigree. We have it not, that can be heard of, from any ancient state, or polity or church; nor by any statute left us by our ancestors elder or later; nor from the modern custom of any reformed city or church abroad, but from the most anti-christian council and the most tyrannous inquisition that ever inquired. John Milton. Areopagitica, The Harvard Classics. http://www.bartleby.com/3/3/3.html last visited 25 April 2014.

[5] Milton. Areopagitica.

[6] “Truth indeed came once into the world with her divine Master, and was a perfect shape most glorious to look on: but when he ascended, and his Apostles after him were laid asleep, then straight arose a wicked race of deceivers, who, as that story goes of the Egyptian Typhon with his conspirators, how they dealt with the good Osiris, took the virgin Truth, hewed her lovely form into a thousand pieces, and scattered them to the four winds. From that time ever since, the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled body of Osiris, went up and down gathering up limb by limb, still as they could find them. We have not yet found them all, Lords and Commons, nor ever shall do, till her Master’s second coming; he shall bring together every joint and member, and shall mould them into an immortal feature of loveliness and perfection. Suffer not these licensing prohibitions to stand at every place of opportunity, forbidding and disturbing them that continue seeking, that continue to do our obsequies to the torn body of our martyred saint.” Milton, Areopagitica.

[7] “Yet if all cannot be of one mind–as who looks they should be?–this doubtless is more wholesome, more prudent, and more Christian, that many be tolerated, rather than all compelled. I mean not tolerated popery, and open superstition, which, as it extirpates all religions and civil supremacies, so itself should be extirpate, provided first that all charitable and compassionate means be used to win and regain the weak and the misled: that also which is impious or evil absolutely either against faith or manners no law can possibly permit, that intends not to unlaw itself:” Milton, Areopagitica.

[8] Milton, Areopagitica.

[9] James Mill, Supplement to the Encyclopedia Britannica (London: J. Innes, 1825). 3/25/2014. http://oll.libertyfund.org/titles/mill-liberty-of-the-press#Mill_0888_88

[10] Also this link can be doubted, see for example Neil Postman, Amusing Ourselves to Death: Public Discourse in the Age of Show Business (1985).

[11] His argument does not sound very convincing in a world where Paris Hilton and her like are heroes.

[12] James Mill, Supplement to the Encyclopedia Britannica (London: J. Innes, 1825). 3/26/2014. http://oll.libertyfund.org/titles/mill-liberty-of-the-press#Mill_0888_52

[13] There is, indeed, hardly any law of human nature more generally recognized, wherever there is not a motive to deny its existence. “To the position of Tully, that if Virtue could be seen, she must be loved, may be added,” says Dr. Johnson, “that if Truth could be heard, she must be obeyed.” (Rambler, No. 87.)—“Je vous plains, mes Péres,” says Mons. Pascal to the Jesuits, “d’avoir recours à de tels remèdes. Vous croyez avoir la force et l’impunité: mais je crois avoir la verité, et l’innocence. C’est une etrange et longue guerre que celle ou la violence essaie d’opprimer la verité. Tous les efforts de la violence ne peuvent affoiblir la verité, et ne servent qu’à la relever davantage: toutes les lumières de la verité ne peuvent rien pour arrêter la violence, et ne font que l’irriter encore plus. Quand la force combat la force, la plus puissante detruit la moindre: quand l’on expose les discours aux discours, ceux qui sont veritables et convainquants confondent et dissipent ceux qui n’ont que la vanité et le mensonge.” (Lett. Provinc. [23] 12.)—“Reason,” says Burke, “clearly and manfully delivered, has in itself a mighty force; but reason, in the mouth of legal authority, is, I may fairly say, irresistible.” (Lett. on Regicide Peace.) James Mill, Supplement to the Encyclopedia Britannica (London: J. Innes, 1825). 3/31/2014. http://oll.libertyfund.org/titles/mill-liberty-of-the-press#Mill_0888_108 .

[14] The text can be found here: http://oll.libertyfund.org/titles/mill-liberty-of-the-press#Mill_0888_151

[15] “W.T. Stead, (…): A newspaperman must have good copy, and a good copy was ‘oftener to be found among the outcast and the disinherited of the earth than among the fat and well fed citizens.’ Hence, ‘selfishness makes the editor more concerned about the vagabond, the landless man, and the deserted child. (…) It was, for example the sensationalism of the ‘Bitter cry of outcast London’, (…) that led to the appointment of a Royal Commission on the Housing of the poor.”George Boyce, The Fourth Estate: the reappraisal of a concept, in: Newspaper History from the 17th century to the present day, edited by George Boyce, Thomas Curan and Pauline Wingate, Constable, 1978

[16] Boyce, The Fourth Estate, p. 25.

[17] Friedrich Nietzsche, Die Götzen-Dämmerung – Twilight of the Idols 1895, http://www.handprint.com/SC/NIE/GotDamer.html, last visited at 25 April 2014.

[18] „Die öffentliche Meinung ist der bestehenden Ordnung der bürgerlichen Dinge nicht hold, und das macht die Freiheit der Rede um so nötiger. Die öffentliche Meinung ist ein See, der, wenn man ihn dämmt und aufhält, so lange steigt, bis er schäumend über seine Schranken stürzt, das Land überschwemmt und alles mit sich fortreißt. Wo ihm aber ein ungehinderter Lauf gegeben ist, da zerteilt er sich in tausend Bäche mannigfaltiger Rede und Schrift, die, friedlich durch das Land strömend, es bewässern und befruchten. Die Regierungen, welche die Freiheit der Rede unterdrücken, weil die Wahrheiten, die sie verbreiten, ihnen lästig sind, machen es wie die Kinder, welche die Augen zuschließen, um nicht gesehen zu werden. Fruchtloses Bemühen! Wo das lebendige Wort gefürchtet wird, da bringt auch dessen Tod der unruhigen Seele keinen Frieden. Die Geister der ermordeten Gedanken ängstigen den argwöhnischen Verfolger, der sie erschlug, nicht minder, als diese selbst im Leben es getan. Der freie Strom der öffentlichen Meinung, dessen Wellen die Tagesschriften sind, ist der deutsche Rubikon, an welchem die Herrschsucht weilen und sinnen mag, ob sie ihn überschreiten und das teure Vaterland und mit ihm die Welt in blutige Verwirrung bringen, oder ob sie sich selbst besiegen und abstehen soll.“ Ludwig Börne, Die Freiheit der Presse in Bayern, 1818, http://www.zeno.org/Literatur/M/B%C3%B6rne,+Ludwig/Schriften/Aufs%C3%A4tze+und+Erz%C3%A4hlungen/Die+Freiheit+der+Presse+in+Bayern.

[19] Unser Hauptfeind, der Hauptfeind aller gesunden Entwicklung des deutschen Geistes und des deutschen Volkstums, das ist heutzutage die Presse. (…) Ihre Lügenhaftigkeit, ihre Verkommenheit, ihre Unsittlichkeit werden von nichts anderen überboten als vielleicht von ihrer Unwissenheit.“ Ferdinand Lassalle, Die Presse. Ein Symptom des öffentlichen Geistes, 1863, hier zitiert nch Pressefreiheit, S. 222.

[20] P. 232.

[21] „Wenn jemand Geld verdienen will, so mag er Cotton fabrizieren oder Tuche oder auf der Börse spielen. Aber dass man um schnöden Gewinstes willen alle Brunnen des Volksgeistes vergifte und dem Volk den geistigen Tod täglich aus tausend Röhren kredenze – – es ist das höchste Verbrechen, das ich fassen kann.“ Ferdinand LASAALLE, Die Presse, 1863, hier zotiert nach, Pressefreiheit, S. 232.

[22] „Die erste Freiheit der Presse besteht darin, kein Gewerbe zu sien. Dem Schriftsteller, der sie zum materiallen Mittel herabsetzt, gebuehrt als Strafe dieser inneren Unfreiheit die aeussere, die Zensur.“, Karl Max, Die Verhandlungen des 6. Rheinischen Landtags, in Rheinische Zeitung, Nr. 139, 19 May 1842, hier zitiert nach Karl Marx, Friedrich Engels, Pressefreiheit und Zensur, edited by Iring Fetcher, Europäische Verlagsanstalt, Frankfurt am Main 1969, p. 92

[23] For the defintitions of negative and positive freedom, see: Isaiah Berlin, Two concepts of freedom.

[24] Immanuel Kant, Beantwortung der Frage: Was ist Aufklärung?, in: Berlinische Monatsschrift, 1784, pp. 484-485.

[25] Immanuel Kant, Beantwortung der Frage: Was ist Aufklärung?, in: Berlinische Monatsschrift, 1784, p. 484.

[26] Eckart Hellmuth, Enlightement and Freedom of the Press: The Debate in the Berlin Mittwochsgesellschaft, 1783-1784, p. 431.

[27] „Insofern kann man sagen, dass zwar die Vorstellung von Meinungsfreiheit als Menschenrecht, nicht aber ihre überlieferte utilitaristische  Begründung in die Weimarer Reichsverfassung einging.“ Pressefreiheit, hrsg. Jürgen Wilke, Wissenschaftliche Buchgesellschaft Darmstadt, 1984.  P. 34.

[28] „Hohen Wert der Meinungsfreiheit für die individuelle Entfaltung der Persönlichkeit anerkannt.” Katja Stamm, Das Bundesverfassungs-Gericht und die Meinungsfreiheit, AUS POLITIK UND ZEITGESCHICHTE (B 37-38/2001), http://www.bpb.de/apuz/26023/bundesverfassungs-gericht

[29] David Irving two pages  after dealing with Mill as “from discredited historian to free speech martyr.” Free Speech: A Very Short Introduction. By Nigel Warburton (Oxford: Oxford University Press, 2009), p. 36.

[30] Paul McMullan lays bare newspaper dark arts at Leveson inquiry, The Guardian 29 November 2011,  http://www.theguardian.com/media/2011/nov/29/paul-mcmullan-leveson-inquiry-phone-hacking, retrieved the 7 April 2014

[31] See German press code, first article: http://ethicnet.uta.fi/germany/german_press_code, last visited 29 April 2014.

[32] THE COMMISSION ON FREEDOM OF THE PRESS,  A FREE  AND RESPONSIBLE PRESS, A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books https://archive.org/details/freeandresponsib029216mbp. Last visited 29 April 2014.

[33] Juilian Petley, Censorship and Freedom of Speech, in: The Media. An Introduction, edited by Daniele Albertazzi and Paul Cobley, Third edition, Pearson Essex, 2010, p. 322.

Ian Carter, Anna Elisabetta Galeotti & Valeria Ottonelli (eds.), Eguale Rispetto (Milan: Bruno Mondadori, 2008)

Amartya Sen asked two questions: (i) Why equality?; and (ii) Equality as to what? He believed that the answer to the first will necessarily entail an answer to the second. (XI) However, to this reviewer, conspicuous by its absence is the question “Is each human being owed equal respect?”In fact, each of the essays gives the impression of presupposing that respect for other persons ought to be equal and then striving to find justifications for that outcome. In other words, there are no essays that argue that, in fact, we do not owe one another equal respect.

The project is one of philosophy, principally, political and moral philosophy and as such, it is predominantly a theoretical one, being light on concrete application, notwithstanding the editors’ questions. Whilst illuminating the concept of equal respect as well as its importance in human interaction, the collection does not attempt to argue that equal respect is the only or principal guiding value; we are not advised as to the circumstances in which other values may prevail over our duties of equal respect.
It is deeply unfair, of course, to criticize a collection of essays for what it does not achieve rather than recognize its merits as an excellent and nuanced contribution to contemporary philosophical discourse. Thus, the reviewer will now turn to some of the articles to demonstrate what to her seemed to be the most interesting ideas and conclusions contained within their pages.
However, before beginning that task, it is necessary to clearly distinguish – as accomplished clearly in the book, in particular by Stephen Darwall and Anna Elisabetta Galeotti – between “recognition respect” and “appraisal respect.” The former indicates equal respect for each human being solely on the basis of their humanity – it is on this that the book concentrates. Appraisal respect, as the name suggests, is the respect we give to others based on their attributes, be they moral virtue, musical virtuosity, athleticism or erudition. Clearly, appraisal respect is not owed equally to everyone as everyone carries such attributes in unequal measure. Moreover, one can merit appraisal respect in one area but not in another. Noone would question Mozart’s musical talent and the due respect on that ground without respecting his personal life as one displaying moral virtual and one rather doubts he was a gifted ball player.
Beginning with Strozzi’s depiction of Mark 12: 13-17 (“Render unto Caesar…”), Darwall takes a tour of respect as recognition, illustrating the “second person standpoint” as a fundamental component. (1-23) Galeotti expands upon this theme to suggest that recognition respect and appraisal respect have closer links than first appear and argues that even recognition respect can be suspended by unspeakable crimes, justifying punishment according to law, though never torture. (The subject of the death penalty was left, disappointingly, unaddressed.) (24-53, especially at 35-36) This is because respect is not so much felt or given as done. We manifest respect through our behaviour; hence can suspend it in appropriate circumstances.
Ian Carter tackles the question of why equal respect. Given that recognition respect is based on the moral agency and personal autonomy of individuals, why should we not vary our respect based on the evident variations in capacity for the exercise of personal autonomy according to individual characteristics? (54-77, especially at 57-8, 61) Carter answers by rejecting Bernard Williams’ demand that we take the other person’s internal point of view and argues instead that recognition respect must be opaque; we must refuse to look inside the other person and assess them, thus coming to a conclusion closer to a Rawlsian position. (66-70) Carter also reverses Sen’s assumptions and argues instead that one cannot answer the question “Equality as to what?” until we have some answer to the question “Why equality?” that is, we have some justification for equality. (56)
Carla Bagnoli returns to Kant and the significance of dignity and its basis, autonomy, as the foundation of equal respect, and throws some light on the related questions: what is individual autonomy and why does it have moral value? (78-100)
Hillel Steiner, Luca Beltrametti and Lester H. Hunt all address in various modes the requirements of equal respect in economic affairs. Steiner persuades us that, despite neoclassical arguments, free trade can be exploitative. (101-112) Using an example of fair trade bananas, he demonstrates that buying at lower cost is a form of exploitation as the purchaser is benefiting from earlier exploitation – and lack of respect – that has put the producer at a long-term economic disadvantage, thus forcing him to sell at a price lower than he would have absent the earlier exploitation. (108-10) He successfully answers the question “Why pay more?” but he also turns that question around and asks the reader: “Why pay less if it means being unjust?” (107)
Beltrametti considers paternalism in economic affairs and begins from B. New’s position that market imperfection is a necessary, but not a sufficient condition to justify paternalism. (113-127) Paternalism may represent a failure to treat its beneficiaries as “ends in themselves” but there are some examples where this is not so. New defines paternalism as A: an interference with the decisional autonomy of the beneficiary; B: with the intention of improving that person’s wellbeing; and C: without the consent of the beneficiary. (114) Beltrametti then distinguishes authoritarian paternalism (which is coercive) from libertarian paternalism (which changes the weights of ones’ reasons for action, such as introducing “default” options in public and private law) (115-117) and finds that the latter is not necessarily more acceptable (or respectful of its beneficiaries) even though it veils itself with the illusion of choice. (122) He adds two more which do not strictly fit with New’s definition, namely Ulysses’ paternalism (which is consensual) and donation paternalism (which requires consent of recipient). (118-120)
Hunt takes us on a disturbing tour of Auschwitz to rebut Robert Nozick’s conclusions in Anarchy, State and Utopia. (128-147) In a complete reversal of respect, Hunt describes the treatment of Jews in the labour camps of Auschwitz, reduced in the eyes of their exploiters to the ultimate “consumable resource.” Each lost 3-4 kg per week and could usually survive for about 3 months before being overcome by starvation, disease or deliberate disposal. Each body was literally consumed, with fat and proteins being converted into labour (like coal or wood burnt for energy) and even in death, body parts were consumed for gold, mattress stuffing and soap. The value of each person was reduced completely to an economic resource. (130-132) In fact, Hunt claims that the labour camps were inefficient even on their own sordid terms; they were poor factories with low output. Furthermore, there was a clear “net-loss” (Kaldor-Hicks) – the persons robbed of their own bodies lost more than was gained by the operators. Nonetheless, this economic analysis seems hardly adequate to explain why we find it so morally horrifying. Nozick’s utility analysis does not explain why it would still be wrong even if it had been economically efficient. Thus, concludes Hunt, there must be some deontological explanation beneath or beyond the economic analysis. (133) Hunt turns to Kant, reminding us that human life has a dignity and not a price; (134) thus we cannot dispose of one Jewish worker and replace him with another of greater “worth” (fatter, fitter, stronger, healthier). (135) Auschwitz’ factories represent the extreme of treating persons as means and not ends in themselves. (136) The second part of Hunt’s article, only loosely connected to the first, discusses the justifications for taxation in democratic states and ultimately concludes that although taxation might be a form of paternalistic coercion (respectful of taxpayers and their ends), in fact, it usually slides into exploitative coercion (like robbery) owing to the clumsiness of states as well as their occasional lack of moral rectitude. (143)
Valeria Ottonelli takes us on a tour of the difficulties of translating the theory of equal respect and formal equality into the realities of the public sphere. (148-173) Examining three concepts – democracy, justification and equal respect – she argues that equal respect mandates democratic governance.
Peter Jones makes an interesting and rather rare foray into the implications of equal respect internationally.(174-200) Despite the fiction that remains the basis of international law, the Westphalian model is no longer a fact of contemporary international relations: states are not independent boxes and certainly not equally independent. (178) Hence, states are not in equal positions to “tolerate” one another as it can only make sense to say that A tolerates B if A has some power to intervene in B and chooses not to exercise it. (177) Furthermore, tolerance or intervention is not a question of a cost-benefit analysis or a perspective of self-interest. (179) Jones argues against intervention as a matter of respect for individuals, rather than respect for “peoples” in some kind of artificial personification of “the state” (186) (defined by Rawls rather than by the Montivideo Convention[2]). (182-184) Some people (persons) may indeed prefer a system that is not liberal-democratic. We can still maintain that a liberal-democratic system is better – even for them – but that is not adequate reason to intervene. (192) In the end, Jones’ conclusion is in line with contemporary international law, which permits humanitarian intervention only in extreme situations.[3] Jones is perhaps over-optimistic about the extent of individuals’ consent to be governed – in liberal-democracies or otherwise – but this paper is theoretical, not practical and thus can be excused.
Elisabeth Telfer completes the book with her essay on humour and equal respect, focusing on ways in which humour can be used to undermine equal respect. (201-213)
On reflection on all the chapters considered together, it becomes less convincing that the collection justifies equal respect at all. Instead, each chapter can be considered as an explanation of and justification for a standard of “equal minimum respect.” Accepting Galeotti’s conclusion that recognition respect and appraisal respect are not of a different nature but rather shades of the same thing, each of the essays can be read as a justification of a presumption of respect at level x for each person qua person, which amount can be increased on the basis of appraisal (x + a) or can be reduced on the basis of exceptionally immoral or anti-social behaviour (x – b). However, x – b can never fall below a basic threshold (y) for example, to justify torture, non-consensual medical experimentation, or to treat human bodies as consumable economic resources. y is the level of equal minimum respect.
It has not been possible in this short review to give equal consideration to each of the commendable essays in this collection but it is hoped that this review will encourage readers to take a closer look at the book and, for those not fluent in Italian, to seek out further work by these accomplished scholars.

[1] All translations are the reviewer’s own.

[2] Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, Art. 1.

[3] Cf: United Nations Charter, Art. 2(4) (principle of non-intervention in sovereign states) and Convention on the Prevention and Punishment of the Crime of Genocide, 9th December 1948, 78 U.N.T.S. 277, Art. 1 (requiring states “to prevent and to punish” genocide and indicating, therefore, international intervention). See also, Case concerning the application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment of 26th February 2007, 2007 ICJ Rep. 1.