The Diminishing Difference Between Sin and Crime

“It’s a thin line between love and hate,” the Pretenders sang in 1983, but it’s a line that in recent decades legislators and academics have been eager to draw. Indeed, Western democracies as well as the European Court of Human Rights have become so concerned about hate speech that they have sought not only to criminalise its utterance, but also extend its sanction from the public to the private domain. The novelty of policing speech that “implies a high degree of animosity” represents a remarkable extension of the common law to criminalise an all-too-human emotion.

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Policing what we do with words requires the common law to interpret and adjudicate upon what J.L. Austin (in How to Do Things with Words, 1962) identified as an illocution or performative speech act. Such acts, Austin demonstrated, could not only misfire, they might also produce “consequences which are unintended”.[1] This notwithstanding, and developing speech act theory in a way Austin would have considered “unsound”, the UK College of Policing considers hate “not caused by the speech, but the speech itself constitutes the harm”.

In this context, Ogden Nash would find himself in trouble with the constabulary for uttering:

  … hate is the verb
that to me is superb,
and love, just a drug on the mart.
Any kiddie from school
can love like a fool,
but hating, my boy, is an art.

It’s an art form, however, that a new class of speech managers want to eradicate.

The view that certain speech acts cause harm and require sanitising first arose among critical theorists and human rights lawyers. How has their preoccupation about how we do things with words led to laws that not only control what we say and think, but also how we feel? What, more precisely, does it mean to hate” Is it intrinsically wrong and, more pertinently, eradicable through speech management?

The Bible is ambivalent. Christianity hated sin but not the sinner. Christ, if Luke reported him correctly, was guilty of “a pre-crime hate incident” when he claimed that “if any man come to me and hate not his father and his mother, and his wife and his children, and his brethren and his sisters, yea and his own life also, he cannot be my disciple”. Aquinas, who codified the Catholic perspective on sin and virtue, considered hatred a vice, but not a capital one. It arises, as Augustine had earlier disclosed, from the passions, most notably anger. Even a Christian, Augustine wrote, could find anger solidifying into hatred when confronted by a hostile enemy.[2]

At the Reformation, both Protestant reformers and their Counter-Reformation opponents solidified their hatred of each other. Significantly, Calvin believed that “God distinguishes between the righteous and the unrighteous, and in such a way as shows that he is not an idle spectator; for he is said to approve the righteous, and to hate the wicked.” [3]

In the centuries of reformation and reaction, religious hatred and the confessional warfare it incited not only devastated European Christendom, but also stimulated the emergence of the modern state. Hatred, in fact, served as a resource for critically productive animosity. The long history of Calvinism in Europe and Puritan nonconformity in England, evinced both a jealousy of the establishment and a fondness for sectarian controversy that subverted, according to Matthew Arnold, any “ideal of complete, harmonious, human perfection”. Puritan controversialists, like John Milton, mounted polemical defences of freedom of speech and publication, including what would now be considered hate speech, directed at more conservative and Catholic opponents. [4]

In the eighteenth century, Goethe, following Milton’s example, thought “the poet must know how to hate”.[5] William Hazlitt captured the character of this anti-establishment style and the creative dynamism it unleashed in his seminal essay “On the Pleasure of Hating”: “Hate, like a quantity of superfluous bile upon the stomach, wants an object to let it out upon.” “Does the love of virtue,” he asked rhetorically, “denote any wish to discover or amend our own faults? No, but it atones for an obstinate adherence to our own vices by the most virulent intolerance to human frailties. This principle is of a most universal application.”

Hazlitt, like Augustine before him, considered hatred a passion intrinsic to human nature. The more we examine human psychology the more we realise that “we are made up of antipathies”. Without something to hate, Hazlitt opined, “we should lose the very spring of thought and action. Life would turn into a stagnant pool were it not ruffled by the jarring interests, the unruly passions, of men.”[6]

Without something contemptible to react against, there could be neither progress nor productivity. Hatred and the problem of speech deemed hateful captures what moral philosophers came to understand as a conflict between moral perspectives: admirable from one point of view, deplorable from another. Interestingly, both religious fanatics and our contemporary speech managers often confuse the pleasure of hating or of hating hate speech with a form of virtue.

Perverse creatures that we are, we take pleasure in being certain that we are right. Requiring the legislator, therefore, to sanction certain speech acts because their audience might find their perlocutionary impact undesirable draws the courts into an area that until very recently the law sought to avoid. Indeed, John Wolfenden, in his landmark report on Homosexual Offences and Prostitution in 1957, wrote that many kinds of “behaviour many people find morally reprehensible are not crimes”. This applied particularly to homosexuality, at that time a criminal offence. On what, Wolfenden reasonably asked, should the law base the prevailing “moral view”? His committee advised, and parliament subsequently legislated, that moral offence or sin needed to be distinguished from crime. There “must”, Wolfenden maintained, “remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.[7]

A basic understanding of liberal democratic practice should recognise how the rule of law distinguished itself from sin, the hatred of sin and the imposition of a single moral, theological or ideological orthodoxy. It is this distinction between criminal law and sin that hate speech legislation and the cancel culture it has generated on campuses, and in the mainstream media, intends to erase. How has this happened?

 Sin and the modern state

The history of the modern democratic state demonstrates that the coincidence between law and morality could, in certain circumstances, be very small. In a theocracy, for example, law is religious law, every crime is recognised as a sin and every sin proscribed as a crime. This is the case in contemporary Iran and Saudi Arabia, but in the West the divergence between sin and crime since the Enlightenment has been a notable political achievement. Here the modern state came to be understood as an association whose members subscribe to a variety of religious and moral beliefs, and yet live under one, common, law. In other words, establishing a distinction between crime and sin was one of the outstanding achievements of secular Western democracies.

However, it is not a characteristic unique to these societies, nor is it an absolutely secure distinction. Even in Europe and the United States, the separation was only slowly acquired. It required two circumstances. First, the variety of moral and religious opinion which appeared in these societies would have destroyed every vestige of social cohesion if government had not refrained from imposing a single moral or speech code by law. Second, the moral beliefs of European societies reflected those which had become attached to the Christian religion, and Christianity always recognised a distinction between sin and crime, between what must be avoided if salvation is to be enjoyed and what might be legitimately demanded by Caesar and the civil law.

At the same time, modern European and early American societies have also shown that they were not immune from relapse. Calvin’s Geneva, the millenarian sectaries who dominated Barebone’s Parliament in England in 1653, and their brethren in New England a few decades later, sought to impose moral rule by a sanctified, fanatical elect where crime and sin coincided. But neither in these cases nor anywhere else in the increasingly secular West did these endeavours enjoy durable success.

Yet, the absence of any detailed coincidence between particular beliefs about right and wrong and what civil laws in Western societies enjoin and forbid does not mean there is no connection between morals and politics. The constitutions of governments, their decisions and actions, and the laws they promulgate have never been immune from judgments of approval and disapproval. There never was a time when political argument did not assume a form that outlined appropriate moral and political conduct and therefore whether government should or should not be active in certain manners and matters. This was so even where secular governments did not require the direct enforcement of what was believed correct for civilised human conduct.

In other words, political judgment, even in pluralist democracies which recognise a distinction between sin and crime, invariably has some moral viewpoint for its context. What has been overlooked in the discussion of hate speech is the ethical assumptions that continue to shape our public morality. What, more precisely, is the political moral context to which restrictions on speech of a religious, sexual, racial or transgendered nature may be referred to make them intelligible?

Modernity and public morality

To understand our current moral confusion, we need to recall how modern government and public morality evolved in Western Europe. In this context, the English political philosopher Michael Oakeshott observed that since the seventeenth century three moral dispositions have shaped Western self-understanding. He termed them: the morality of communal ties; the morality of individuality; and the morality of collectivism. They arose chronologically and contingently. The oldest, the morality of communal ties, assumed loyalty to persons rather than abstract principles. It reflected a pre-modern community where custom, office and hereditary status prevailed. This feudal relic enjoys only a fragmentary existence in the present, but even where modern cosmopolitan conditions are entirely adverse, it survives as a form of nostalgic yearning.[8]

By contrast, the morality of individuality, or the disposition to make choices for oneself, as the conduct proper to a self-determining character, first emerged at the Renaissance. Choice working on chance over a period of centuries produced circumstances favourable to this distinctively modern outlook. It gave rise to a new idiom of conduct and character where the individual claimed moral sovereignty over himself and lived a life governed by choice. The new idiom came to treat human societies as associations of individuals. Philosophers from Hobbes and Locke to Montesquieu, Adam Smith and Kant clarified its preconditions and principles. These associations revealed an intimate connection between the institution of private property, freedom of speech and the enjoyment of individuality along with the desire to explore their possibilities. Whereas in communal societies private property was virtually unknown, in those where individuality became the image of moral conduct, property, liberty and personal responsibility assumed the utmost consequence.

Such an individualist morality has little interest in curtailing speech acts unless they are illocutionary utterances inciting a crowd to criminality or physical violence. Prior to recent legislation on hate speech, this was the conventional view held by common lawyers, liberal thinkers and the general public. Laws should be as few as possible, and they should be both enforceable and enforced. Even in Wolfenden’s day, it was an “essential element in the common law understanding of the public good that there should be private personal responsibility. The more you legislated the more you impaired and diminished the role of personal responsibility.”

Unfortunately, the history of modern morality did not end with the displacement of feudal loyalty by the morality of individualism. The circumstances of an increasingly industrial modernity bred not a single moral character, but two opposed ones: that of the individual; and that of the man or woman who, for various reasons, could not be an individual. This anti-individual “mass man”, was not the relic of a communal past, but a distinctly modern character, the product of the same dissolution of traditional pre-modern ties that generated the individual.

From the nineteenth century, the masses of the industrial age not only looked to the state for support, they or their advocates also generated a morality appropriate to this character and condition. Mass man preferred security to liberty, solidarity to enterprise, and equality of outcome to self-determination. Moreover, as the capacity and power of the modern state ineluctably grew, some of its most salient political inventions were designed to make choices for those incapable of making them. Dictatorship in the name of the people, the welfare state, managerial rationalism, and rule by a cosmopolitan technocratic elite are four notable examples of this proclivity. It is to morality in this collectivist mode that we may trace the felt need to curtail harmful speech and, by extension, harmful thought. The collectivist mind deals with human beings as featureless resources of an enterprise that manages, disallows and polices speech it considers harmful to a population composed of oppressed minorities. At the same time, it condones speech acts that might demean the morality of individuality, liberty and private responsibility. How so?

Collectivism and curtailing speech

The collectivist mind wants to manage and mould the population. It allocates rewards and benefits according to an abstract formula that establishes the conditions for perfect equality and perfect solidarity. In its earlier, twentieth-century, productivist and distributionist manifestations, it assumed the management of economic production and the equal distribution of goods and resources. In its recent ethical reformulation, it revives, in a progressive idiom, an earlier millenarian vision of a society divided between the just and the reprobate. The righteous today, unlike their sectarian precursors, are the victims of historic injustice, whether through colonialism, biology, or capitalist democracy’s inegalitarian, institutional structures.

The guilty, in this Manichean moral melodrama, are the unreconstructed, reprobate white majority, who have unjustly or unconsciously victimised these suffering minorities. To realise the latest collectivist vision these minorities must be cherished for their otherwise failed cultures and otiose beliefs and compensated for their historic oppression. To achieve the collectivist vision of emancipation not only requires meeting bureaucratically determined targets for inclusivity, but also reducing the vocabulary through which dissent from this abstract goal might communicate itself.

In curtailing harmful speech, the movement to create a perfect social order also seeks to transform the common law and its emphasis on private responsibility into a rationalist instrument detecting and criminalising sinful utterance, as well as behaviour. Lord Chief Justice Goddard worried in the 1950s that, “If you legislate quantitatively a man’s private personal responsibility which you bring within the realm of the criminal law, to that precise extent, quantitatively, you decrease the area of his personal responsibility.”[9] This is precisely what hate-speech legislation intends.

A moral fanaticism practised by the collectivist mind is in the process of collapsing the distinction between public and private and punishing any statement that a victim, or her spokesperson, deems harmful. From the perspective of speech act theory it is not the illocution or speech act itself, but the perlocutory response of an audience of soi disant victims that now determines an offence.

In this manner a worldview can be imposed upon a population as it becomes schooled in sanitised locutionary practices. In this evolving enterprise to achieve speech compliance, correct speech assumes an increasingly acronymic and euphemistic character. It evacuates meaning by imposing a seemingly neutral, scientific or social scientific vocabulary. Modern psychological warfare provides the context for this distortion of speech reference and meaning. During the Vietnam War, for example, the US military faced with the embarrassing problem of returning body-bags of dead servicemen to their families renamed the bags “human remains pouches” before reducing them to the impersonal and euphemistic acronym HRP. In a similar fashion, ethnic categories, “Afro-Caribbean”, “Black” or “Asian”, are in the process of being acronymically transformed into a neutral and therefore more scientific and bureaucratic verbal shorthand BAME (Black, Asian, and minority ethnic) or POC (people of colour). Words that allude to a specific minority characteristic or disposition will soon become prima facie evidence of pre-crime hate.

Abbreviation, euphony and euphemism over time alter and narrow meaning. Cancelling words ultimately cancels thoughts that the collective mind considers uncomfortable. Minimising speech in this manner not only provides a medium of expression for the mental habits proper to the devotees of a collectivist morality, it eventually makes other modes of thought impossible and, in so far as thought depends on words, unthinkable. Such criminalisation of language not only adds to the misfortunes of the world, its enforcement reduces its disarticulated speakers to a condition of mute compliance, enabling yet further administration by an elite class of speech and thought managers.

David Martin Jones’s most recent book, History’s Fools: The Pursuit of Idealism and the Revenge of Politics, was published by Hurst & Co last year

[1] J.L. Austin How to do things with words Oxford 1975 p.106.

[2] Saint Thomas Aquinas, “Of Hatred”, Summa Theologiae Secunda Secundae Paris, 1265-1274 Question 34 Articles 1-6

[3] John Calvin Institutes of the Christian Religion (Geneva 1541) chapter 14

[4] John Milton Areopagitica London, 1644

[5] According to George Eliot Middlemarch London 1871 p.256

[6] William Hazlitt On the Pleasure of Hating London, 1826

[7] John Wolfenden, “Crime and Sin”, British Medical Journal July, 1960 p.140

See also The Report of the Departmental Committee on Homosexual Offences and Prostitution Westminster 1957

[8] Michael Oakeshott, Morality and Politics in Modern Europe (Yale 1993) especially part 1 pp.1-16

[9] Goddard quoted in Wolfenden “Crime and Sin” op cit.