Saturday, May 27, 2006

A Remark on “Housewitz” Case Advocacy

A Dutch student was sentenced recently to 40 hours of community work for perverse depiction of Auschwitz concentration camp by making a dance internetclip titled “Housewitz”. A video used images of the Auschwitz death camp, turning the infamous slogan "Arbeit Macht Frei" into "Tanzen Macht Frei". The clip announced DJs with Sieg Heil, and spoke about “seven million party people, set their body’s on fire”, and said the dresscode was “skinny Jew." Similarly, English historian David Irving was sentenced to a 3-year prison sentence few months ago by Austrian court for his notorious and long standing denial of holocaust. Not just far right bigots, many legal theorists too in a warm hospitality of their campuses voiced their skepticism by what is supposed to be an apparent free speech infringement. Further, many good hearted citizens, who justly think of themselves as democrats are convinced that such laws are terribly outdated and have no place in a free society. If society is association of individuals, each of whom has a conception of good or worthwhile life, then facilitation of these goods by society should not be discriminatory. They argue that any view endorsed by society as a whole would be that of some citizens but not others. Those who see their views hindered by the state would not be treated with equal respect in relation to their compatriots advocating the established view.

In their advocacy zeal (cf. questioning whether it is appropriate to ban or hinder Housewitz interenetclip or the propagation of holocaust denial) the aforementioned views simply ignore ontological questions, regarding the factors that account for social life. I may not agree with severity of criminal justice retribution, especially not in the Irving case, but it follows from ontological argument that state is entitled to endorse or hinder particular set of values and particular worldview. Why?

In his Liberalism and Limits of Justice Michael Sandel argues convincingly that the way we live together in the society does not amount to an atomist model in which the self and identity is supposed to be unencumbered but much more to a holist model in which one’s identity and self is situated in various communities (family, cultural, local community etc.). A view that demands unconditional neutrality of the state simply overlooks that sustaining specific historical set of institutions and forms is and must be socially endorsed common end since it encourages the willing identification with the polis on part of the citizens. This need for the identification of citizens with the common goals of the polis is simply overlooked by unreflective procedural liberalism that excludes the socially endorsed conception of the good. Every democratic society, even a more libertarian one (i.e. governed by the difference principle), presupposes high degree of solidarity among its citizens through a strong sense of community. In a culture heavily infected with atomistic prejudices this awareness is often lost.

One of the crucial elements that form modern democratic European mindset is a phenomenon of a totalitarian state with its systematic, institutionalized, carefully planned and legally unrestrained use of physical and psychological violence. Its paradigmatic expression is a concentration camp, so accurately depicted by Hannah Arendt as a “world utterly devoid of thinking, feeling, judgment, personal identity, privacy and all else that distinguishes human existence”. Places like Auschwitz or vast and hidden GULAG archipelago, eerie events like silent mass killings of tens of thousands of Slovene and Yugoslav anticommunist POWs and civilians on Slovenian soil by Titoist special divisions immediately after the Second World War or massacre of 9000 Muslims in Srebrenica, Bosnia in summer of 1995 before the eyes of international community, may all very well be absurd. But they might just as well not be. They are the sad reminders for sure but as such they are also founding stones of united Europe and a part of European identity. The founding stones because they say unto us: Never again. In this way democratic societies are more than entitled to care for the objective depiction of events in the dark European 20th century.

It can be a matter of debate whether criminal law is appropriate means to tackle these issues but legal system latu sensu certainly cannot ignore them. What judges in Irving and “Housewitz” cases did was to remove the sneering mockery which disturbed the peace above the graves, thus enabling the victims to tell us their story again. A free society relies on a strong allegiance from its members and is based on the identification around the sense of common good – and around the knowledge of past evils.


At 11:17 PM, Blogger Matej Avbelj said...

This was indeed a very lucid post on a very topical, burning and painful issue. While for myself I would on the value-based foundation agree with everything that Movrin writes: i.e. above all that it is utterly despicable to ridicule Auschwitz,I can not but criticize Movrin's theoretical and epistemological matrix that underpins his post, and his philosophy in general.

I think that his bipolar choice between the atomism and communitarianism is simply oversimplified and points a critical finger to the wrong direction. The philosophers that are "on the wrong side" according to Movrin, such as Dworkin and co. - let's call them genuine liberals, not libertarians to make sure, would not even for a moment hesitate to endorse a communitarian approach. Dworkin is, for example, widely known and also ferociously criticized for having developped a theory of law that is based on the so called concept of community personified that results in morally monist (trumping) outcomes in morally and value diverse societies. Additionally, Dworkin's famous account of integrity is a clear-cut refusal of atomistic approach. Rawl's and Dworkin's approaches are examples of liberal communitarianism in which the greatest value for the community is the well-being of every single individual. And this is in my view the soundest approach.

Why is then Movrin's critical finger pointing to the wrong direction? It is pointing to the wrong direction because it is caught in a wrong dilemma. The right question is not whether to be atomistic or communitarian, but rather how to govern and live in the community which has lost its traditional homogeneous nature and it is rather characterized by a great degree of diversity.

In other words, the right question is: having adopted a communitarian approach, how to square the diversity in community so that its peaceful and prospereous existence and well-being are guaranteed? Being a state: how to govern morally, religiously, politically and ethnically diverse community so that all the members of the community, of the statist commonwealth, will be guaranteed a position of free and equal citizens?

Movrin, I fear, commits a fundamental mistake even before embarking on answering these questions, because he apparently thinks that there is one common good. Reality in our modern societies is exactly the opposite: on account of the mentioned examples of diversity there are many conceptions of the good - within only one concept of the right. And our modern state has to navigate among these competing and conflicting conceptions of the good.

My conclusion on Irwing and Housewitz cases is therefore the following: individuals have to be guaranteed as much freedom as possible and the state apparatus should be entitled to interfere with their actions as little as possible. As long as the society can defend itself against this kind of abhorrent examples of free speech, and the present discussion with Movrin shows that it can, there is no reason for the state to interfere. Let the public discourse, free speech fully value laden and pursued by autonomous individuals striving for their conceptions of the good decide the course, the direction of our societies. The state should be bound to act within the limts of public reason - within the concept of the right determined by the constitution - withelding from reliance on any comprehensive doctrines, but it should leave as much as possible free space to its citizens to advocate and pursue the comprehensive doctrines by which they make sense of their lives.

The state will, of course, never be neutral, neither will act in a purely procedural way. The state is the people and the majority will always push more strongly for its conception of the good, which will be, naturally, the prevailing conception of the good. But in a geuninely liberal state we are not concerned about the common good of the majority, which will take care for itself due to its greater number, rather we are concerned for the conception of the good of the minority, which is much more vulnerable and always under pressure to succumb under the "common good" as defined by majority. Liberal communities are not majoritarian, it is not the happiness of the greatest number that matters, it is the greatest happiness of every individual that counts instead. Only in that way the community will be a real, genuine community of free and equal members, with different conceptions of the good. And this is also what the value-based (and hence not neutral) content of the public reason following which the liberal state operates in the modern, global and increasingly diverse societies.

At 10:54 PM, Blogger Miha Movrin said...

Thanks for great comment! Sadly, tomorrow is a working day – primum vivere deinde philosophari – so I will clear my position in additional post later on.


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