Abstract

VAN MARLE, Karin. Freedom of speech and the "ethical activity of thinking". Tydskr. geesteswet. [online]. 2009, vol.49, n.1, pp.32-42. ISSN 2224-7912.

In this article, following the work of Hannah Arendt, the author argues that thought should be placed at the centre of the reflection on freedom of speech. For Arendt thinking is a necessary condition for the existence of an active political sphere and democratic politics. The absence of thought on the other hand is central to totalitarianism. Arendt, reflecting on the trial of Nazi bureaucrat Adolf Eichman, noted how the absence of any activity of thinking and the rigid following of rules and cliches resulted in evil - what she calls the banality of evil. The author focuses on the limits of liberal legal approaches to respond adequately to the issue of freedom of expression, mainly because of the absence of thought and the preference for predictable applications of rules and interpretations of rights in these approaches. Firstly, the author exposes the law's preoccupation with fairness, legitimacy, functionalism and economic benefit to the detriment of ethical thought and justice. Thereafter, the author recalls the argument by Wesley Newcombe Hohfeld related to the indeterminacy of rights, as discussed by Joseph Singer. Hohfeld made a radical intervention in traditional liberal legal assumptions by formulating the category of no-right, thereby exposing the situations in which an individual, although she suffered damage, will have no recourse in law. In the context of freedom of speech the category of no-right and the reality of damage without recourse in law can play out in many ways - someone could suffer damage because of speech without recourse to law or someone's right to speech could be infringed without recourse to law. Thirdly, Jacgues Derrida's deconstructive notion of justice as aporia is discussed to link up with the urgency of thought and judgement in the face of instrumental rule-following. Finally the author considers the application of Derrida's notion of auto-immunity/ self-destruction to the law and particularly to the right to freedom of expression. If the legal right to freedom of speech has the tendency to self destruct each attempt to protect one kind of speech would always already also have destructed and prevented that same speech. The author argues that thought should guide the allowance and limitation of freedom of speech and not a predictable application of rules, dogma and jargon. She concludes with reference to an application of Arendt's insistence on the link between the activity of thinking and democratic politics within the context of the politics that surrounded the proposed legislation on same sex marriages, citing in this regard Jaco Barnard's recent work, which persuasively shows how thoughtless behaviour allowed moments of a totalitarian politics.

Keywords : Hannah Arendt; auto-immunity; banality of evil; Jaco Barnard; democratic politics; Jacques Derrida; Wesley Newcombe Hohfeldt; indeterminacy of rights; justice; Njabulo Ndebele; Joseph Singer; same-sex marriage; thought; totalitarianism.

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