Eric Heinze, Queen Mary University of London, School of Law, is publishing An Anti-Liberal Defense of Free Speech: Foundations of Democracy in the Western Philosophical Canon in the Oxford Handbook of Law and Humanities (forthcoming). Here is the abstract.
Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle”, expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic enquiry into the question of legal legitimacy – that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.Download the essay from SSRN at the link.