Indifference is correlative with the freedom to be left alone. But there is another
side to the freedom of thought and discussion, for which indifference is not enough.
Hence Mill argues in On Liberty not only that my thought and expression should be free from
coercion but also that my freedom of thought is in everyone elseā™s interest.
Love Is All You Need: Freedom of Thought versus Freedom of Action 171
Such freedom is enough for the liberty of thought and discussion when conceived
as a matter of self-development. This is negative and private freedom. But there
is another side to the freedom of thought and discussion for which indifference is
not enough. Freedom of thought and discussion, unlike freedom of action, leads
to the discovery of truth, the other side of āman as a progressive beingā that, for
Mill, replaces salvation as the justiļ¬cation for liberty of thought and discussion.
Negative liberty, Mill (1977: 288) says, āacknowledges no right to any freedom
whatever, except perhaps to that of holding opinions in secret, without ever dis-
closing them.ā Freedom of thought not only allows you to speak as you like but
also allows me to listen and talk to you. Freedom of thought creates a public in a
way different from freedom of action. Because I think of my opinions as true, I
want others to agree with me. Because I want my opinions to be true, Mill thinks,
we want to listen to others.
If the purpose of freedom of thought is individual salvation, then you can be
indifferent to what is most valuable to me. If its purpose is more communal,
whether self-governance or even the salvation or stability of the community, then
you cannot be so indifferent. Freedom of conscience and political freedom might
be at odds, far from freedom of thought leading to freedom of actions. As the
dissenter in Yoder (1972) and the majority in Mozert (1988) argued, exercising
religious freedom might prevent people from developing the faculties needed to
exercise civic freedom. Negative liberty is not enough to escape the paradox that
my thought and speech is important to me and indifferent to you.
Returning to the Gorgias, we see a third consequence of Socratesā™ paradox that
gets us closer to the paradox that my opinions and words are crucial to me and
not to you. By the usual standards of harm and injustice, Socrates has argued
that the good person cannot be injured. However, when it comes to his own
actions toward others, the good person will observe those conventional standards
of what counts as harm. He wonā™t take othersā™ property, enslave them, or physi-
cally harm them (e.g., Apology 32a6ā“32a7, 33a1ā“33a3; Crito 48d1ā“48d5; Gorgias
522b9ā“522c1). When it comes to being affected, Socrates turns the thought-action
distinction upside down, but when it comes to affecting others, Socrates lives by
conventional morality. Socratesā™ career of speaking is offensive and consistently
violates decorum, but his actions are completely conventional in relying on the
traditional sense of harm that he denies applies to himself. Thoughts violate con-
vention; we follow arguments wherever they lead, but actions and justice must be
conventional. If the problem with freedom of thought understood as toleration
is always to avoid the idea that the reason for allowing freedom of thought is
indifference, Socrates faces the parallel problem. If actions donā™t wound, I donā™t
care what others do to me. But I still have to care about what I do toward oth-
ers and they should care about what they do to me, even though they canā™t
We can see a trace of Socratic reasoning in contemporary thought. Arguing that
other peopleā™s actions cannot harm me and therefore I shouldnā™t care about them
makes things too easy for Socrates. Socrates, like everyone else, does not want
to be a victim or assault or theft. He just thinks that defending oneself against
172 Eugene Garver
such threats diverts oneā™s attention from what matters most, defending the soul.
Socratesā™ paradox impels him to take two distinct lines toward the usual ideas of
injury, both that the good man is invulnerable and that we should train ourselves
to become indifferent to those harms. It is similar today. We need the equivalent
of both Socratesā™ lines of argument to see how other peopleā™s thoughts and speech
can be crucial to them and unimportant to us. Of course other peopleā™s thoughts
and words can harm me. The noise that passes for political argument today makes
it harder to hear thoughtful opinion and to respond appropriately. Other peopleā™s
thoughts can damage not only my thinking but my acting as well. Being attentive
to those assaults on my mind diverts attention from what matters most, freedom
of action. I decrease my own freedom of action by caring about those assaults on
There is a further parallel between Socratesā™ indifference to physical harm and
modern indifference to the harms caused by thought and expression. Physical
attacks in Socratesā™ case and offensive expression in our case are in things that
are by nature indifferent, possessing no power to harm. We and Socrates make a
policy decision, and an emotional decision, not to be affected. We decide that they
are by nature indifferent. The fact that Socratesā™ behavior seems so incredible to
Callicles ā“ he keeps asking whether Socrates is serious or not ā“ is a reminder that
this decision is not an easy or quick one, but takes a lifetime of effort. Socrates
gives a reason we should make that decision ā“ you canā™t be attentive both to your
own thoughts about how to live and to what other people do to you and think
about you. Modern understandings of free speech have to give reasons not to be
offended by speech we think is wrong.
Most people, in Platoā™s time and ours, think that having the right thoughts is
easy, as all one has to do is look around and think like everyone else (e.g., Meno
914cā“992e), but right acting is hard and might need expert teaching and the power
to overcome emotions. Socrates instead maintains that right action is easy ā“ simply
do what is conventionally just ā“ but right thought takes all oneā™s efforts. Today,
everyone wants to act freely, but not everyone wants to think freely, let alone let
others do so. I learn that the best way of exercising my own freedom of thought
and expression is by letting others do the same.
TOLERATION AND LOVE
My gesture at Yoder suggests some of the difļ¬culties with the idea that those things
that are most important to you can be indifferent to me, and how I can be simul-
taneously deeply concerned, yet in another sense indifferent. It is possible to be
indifferent to something without trivializing it in two different ways. The usual
legal response would be that the law recognizes that there are things that are impor-
tant to you and indifferent to me. Those things are, exactly, your property. If you
own something, it follows that I have to keep my hands off it ā“ negative liberty and
the freedom of conscience associated with it. Without a metaphysical freedom of
the will or a religious idea of an inviolable conscience, justifying freedom of speech
and expression in this way is, as Iā™ve argued, difļ¬cult. But Plato suggests another,
Love Is All You Need: Freedom of Thought versus Freedom of Action 173
more interesting, way to address the paradox of something being protected because
of its importance to you and its lack of importance to me.
Love is the way to think about something being central to one person and
indifferent to another, and indifferent in the right way.3 Objects of love are different
both from objects of desire and from objects of reason. Desire and reason are both
universal: either I share your reasons or I judge you to be irrational. Either I share
your desires or I take you to be perverted. But love, compared to other desires, is
both particular and objective. If I declare something lovable, I impute to it a value
beyond just the fact that I love it. Objects of love can be personal, and private in
that sense, but at the same time make a claim to objectivity and impersonality, in
the sense that it isnā™t simply beautiful to me but beautiful and lovable. Santayana
called beauty āpleasure objectiļ¬ed.ā I need not share your love to acknowledge
it. In some cases I acknowledge your love by not sharing it.4 The problem with
freedom of thought, then, is that we have to treat the thoughts of others differently
from how we treat our own thoughts: the mere fact that you think something can
give me a reason to act, while the fact that I think something doesnā™t count for
me at all; I only have a reason to act if I think my opinions are true.5 Love and
beauty are a way of understanding othersā™ thoughts as central to them yet still
indifferent to me. Our attitudes toward love and beauty are a way to understand
othersā™ thoughts as central to them, yet still indifferent to me. I can understand that
you love someone without myself loving her. In that case, I can even be indifferent
to her charms exactly because you think she is beautiful, without thinking of her
as your property. That is the policy decision I described earlier, deciding to be
indifferent. The challenge love offers is to avoid both indifference and jealousy
or desire. Indifference, then, means not skepticism but withholding the usual
judgments and emotions; Kantā™s term disinterest in the Critique of Judgment better
Socrates begins his discussion with Callicles by noting that each of them have two loves, Socrates
for Alkibiades and philosophy, Callicles for Demos and the Athenian people (demos). They both,
Socrates says, are willing to agree with anything their beloved says. At least for Callicles, this means
becoming a ļ¬‚atterer, not a friend, as he will shift what he says as his beloved changes what it says. He
doesnā™t care what the beloved says; whatever it is, he will agree. When faced with love, then, he has
no convictions of his own. He cares only about what the beloved wants, and is indifferent towards
himself. How to love becomes more complicated as the dialogue proceeds.
āUnlike friendship, which involves other-regarding actions we are ourselves disposed to perform,
justice primarily concerns other-regarding actions that we are disposed to demand from othersā
(Yack 1993: 41). I elsewhere discuss one aspect of Platoā™s distinguishing love from desire and reason
in (Garver 2006). Love, as distinct from desire and reason, is thus related to the Christian idea of
the will (see Kahn 2005) and to the Greek idea of thumos (see Mansļ¬eld 1996).
We rely on our answer to the question not because it is our view, but because it is, as we believe,
true. If our reply to the question of the signiļ¬cance of disagreement is that we should refrain
from this action or that because it is controversial, i.e., because others believe it to be wrong,
or unfair, or unwise, then we refrain from that action not because the views of those others
are true, but simply because they are held by them, because they are their views, be they true
or false. To the extent that that is our answer we give other peopleā™s views a weight which we
do not give our own. Or, to be more precise, we give the fact that other people hold whatever
views they have some weight, whereas we give none to the fact that we hold any view. . . . There
is an asymmetry here between the role that my beliefs and those of others play in my reasoning.
Giving weight to the view of others is not treating them the same way I treat myself. It is giving
them, i.e., their views, greater weight than the weight I give myself. (Raz 1998: 27ā“8)
174 Eugene Garver
captures this idea than indifference. Plato is the great philosopher of love, and love
proves the model for freedom of thought.
Thinking about freedom of thought in terms of love has explanatory power. It
is silly to claim that offensive thought and expression do no harm. The presence of
happy atheists in our midst shakes my faith in a just God. My pleasures of smoking
are diminished, or maybe enhanced, by your censure; in any case the meaning of
not going to church or of smoking will be transformed because of the thoughts of
others. Not to be offended, not to be harmed by other peopleā™s thoughts, speech,
and action based on those thoughts, is a decision.
The Supreme Courtā™s claim that there is no such thing as a false idea functions
in the same way (Gertz v. Robert Welch 1974). Of course there are false ideas. But a
policy decision makes the truth and falsity ideas irrelevant to their protection, just
as Socratesā™ commitment to the life of reason makes him indifferent to physical
threats and harms. Because she is your wife, I artiļ¬cially and deliberately separate
beauty from its usual associations with desire. I am not offended at your disgusting
and deviant behavior because I recognize it as a function of sincere belief. It is
because it is important to you that I can understand it in a disinterested way,
without having to agree or disagree. If I thought instead that you are engaging in
that same disgusting and deviant behavior out of laziness or immorality, then I
would have no reason not to be offended. Friendship and love do not come into
This kind of disinterest makes it possible to connect the tolerance essential to
free speech with friendship. I can appreciate beauty without its usual emotional
correlate in desire, and so I can understand your thoughts without the usual cor-
relation to understanding, namely, assent. The difļ¬culty of such an emotional and
imaginative attitude is precisely the ethical challenge of toleration: it is easy to
agree with someone with the same opinion, or to refute, reject, and ļ¬ght against
someone who thinks differently. To live together with someone one recognizes as
different is at the core a difļ¬cult ethical challenge.
Ultimately, we are left with the research project of ļ¬nding forms of friendship
that can make sense in American society today, with its size, its impersonal admin-
istration of justice, and its diversity, without pining for a face-to-face community
instead. Then we can take freedom of thought for what it is. Without thinking
about friendship as a model for free speech, we are left with a model of freedom of
conscience designed to protect religious belief and yet now applied to protecting
the free choices of consumers in a free market. I hope that this historical excursion
allows us to do better.
Why, ļ¬nally, should thought be treated differently from action, in the absence
of religion or metaphysics? The surprising answer, implicit in the Gorgias, is that
actions are more private than thoughts! Actions are private unless they harm others.
But you have an interest in my thoughts you donā™t have in my actions, because
my thoughts can lead to your moral development. Others should care more about
my thoughts than my actions. We saw that in Plato this care could take the form
either as it does in the Republic, of a larger role for the state in education and in
prohibiting seditious ideas, or as in the Gorgias and the Apology, greater freedom
for each to think for him- or herself and to say what he or she thinks. It is because
Love Is All You Need: Freedom of Thought versus Freedom of Action 175
my words are more your business than my actions that you have greater reason for
resentment and offense but at the same time greater reason for restraint.
Bollinger, Lee C. The Tolerant Society: Freedom of Speech and Extremist Speech in America.
Oxford: Oxford Univ. Press, 1986.
Bollinger, Lee C., and Geoffrey Stone, eds. Eternally Vigilant: Free Speech in the Modern Era.
Chicago: Univ. of Chicago Press, 2002.
Carter, Stephen L. āEvolutionism, Creationism, and Teaching Religion as a Hobby.ā Duke
L.J. 1987.6 (1987): 977ā“96.
Garver, Eugene. Confronting Aristotleā™s Ethics: Ancient and Modern Morality. Chicago: Univ.
of Chicago Press, 2006.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Hume, David. History of England. London: J. Hatchard, 1816.
Jefferson, Thomas. āNotes on the State of Virginia,ā in Thomas Jefferson, Writings, Merrill
D. Peterson, ed. New York: Library of America, 1984.
Kahn, Paul W. Putting Liberalism in Its Place. Princeton, NJ: Princeton Univ. Press, 2005.
Kant, Immanuel. What Is Enlightenment? 2d rev. ed. Trans. Lewis White Beck. 1784. Reprint,
New York: Macmillan, 1990.
Mansļ¬eld, Harvey. Machiavelliā™s Virtue. Chicago: Univ. of Chicago Press, 1996.
Mill, John Stuart. āOn Liberty.ā In Collected Works, vol. 18. Ed. John M. Robson. 1859 (4th
ed. 1869). London: Routledge and Kegan Paul, 1977.
Mozert v. Hawkins County Public Schools, 484 U.S. 1066 (1988).
Raz, Joseph. āDisagreement in Politics.ā Am. J. Juris. 43 (1998): 25ā“52.
Wisconsin v. Yoder, 406 U.S. 205 (1972).
Yack, Bernard. Problems of a Political Animal: Community, Justice, and Conļ¬‚ict in Aristotelian
Political Thought. Berkeley: Univ. of California Press, 1993.
21 Legal Philosophy over the Next Century
(While We Wait for the Personal Rocket
Transportation We Were Promised)
r. george wright
Prediction poses special difļ¬culties, as those of us who were once conļ¬dently
promised personalized rocket transportation can attest. Some predictions can be
left vague, and thus conveniently reinterpretable or indeļ¬nitely deferrable. But real
predictions are falsiļ¬able, sometimes even within the compass of the predictorā™s
own professional career. Appreciating this awkward possibility, we often succumb
to the temptation to limit our predictions to mere extrapolation. Predicting only
incremental change along preexisting lines may be less interesting than predicting
sharp discontinuities, path dependencies, random walks, catastrophes, chaotic
swirls, tipping points, symmetry breaks, cascades, emergent properties, butterļ¬‚y
effects, or exponential acceleration. The payoff for mere extrapolationism is in
seeming levelheaded and judicious.
One crucial problem with the strategy of extrapolationism, though, is that
current trends often go south surprisingly quickly. And over the truly long haul,
even betting on a normally sure thing, such as increasing entropy, will at some
point have no future. Most established trends in legal philosophy, it is fair to guess,
will unravel long before entropy halts its advance.
Legal philosophers recognize all of this. Asked to depict likely scenarios for
legal philosophy over the century hence, most would resist the temptation to limn
merely a contest among, say, recognizable descendents of todayā™s inclusive legal
positivists, exclusive legal positivists, and a smattering of broadly described natural
law theorists. Even if that were indeed the single most likely scenario among many
alternatives, it seems too unlikely to place many chips on.
One further problem with predicting continuity is that a century of legal phi-
losophy will require perhaps four or ļ¬ve successive generations of recruitment.
Exacting oaths of doctrinal ļ¬delity from oneā™s own direct successors is of little
help. If legal philosophers are indeed still debating merely the recognizable descen-
dents of todayā™s issues decades from now, they will by then have trouble attracting
the best and brightest potential successors to the ļ¬eld.
So, predicting basically more of the same in legal philosophy seems on balance
unappealing. But isnā™t there more to be said on the role of continuities even in areas
of real intellectual progress? Arenā™t there recurrent themes and categories within
legal and other sorts of philosophies, and even in other academic disciplines? There
are indeed certain ways to draw academic distinctions that seem in literal terms to
| 176 |
Legal Philosophy over the Next Century 177
crop up repeatedly across time in different contexts. Perhaps noticing such generic,
reusable distinctions might give us a better handle on the terms of future debates
within legal philosophy.
We could call these terms standard metadistinctions. Examples are not hard to
think of. Inclusive versus exclusive, as noted earlier, may qualify. Or, relatedly, donā™t
adjectival distinctions such as between hard and soft versions of whatever is under
discussion tend to recurrently arise? Internalist versus externalist? Mixed versus
pure? Methodological versus substantive? Normative versus descriptive? Absolutist
versus presumptivist? A focus on rules versus a focus on individual discretion?
Distinctions among negative, positive, triadic, integrative, and holistic versions
of various sorts of concepts and categories commonly recur as well. Or perhaps
nearly any given subject, taken at the metaphysical, epistemological, and pragmatic
levels. The persistent reappearance in new contexts of these metadistinctions may
also help account for the observation that, in legal and other philosophies, every
imaginable particular position on the matrix of all possibilities will eventually be
staked out and endorsed.
To predict that something we have today only in undifferentiated form will
eventually be split along some such axes above is not to commit the fallacy of
merely assuming continuity. The preceding metadistinctions have proved their
adaptive ļ¬tness by attaching themselves to more than one underlying host concept
over time. Jointly or separately, they could be applied rather mechanically to
any as-yet-undifferentiated concepts. But the mechanical quality of predicting the
emergence of, say, a hard and soft version of some as-yet-unitary legal philosophical
notion of course seems uninspired.
A slightly better strategy ā“ still rather mechanical, but less obviously so ā“ would
be to make predictions that are safe because they crucially depend on what are called
observer selection effects. Cosmologically, for example, we obviously wouldnā™t be
here to observe anything speciļ¬c at all if we didnā™t have underlying conditions
conducive to the existence of observers such as us. So, equally clearly, no theory
that implies anything incompatible with our current existence as observers can
possibly be right.
We can make a little headway as prognosticators, then, by making predictions
that imply the existence of future legal philosophers interested in our predictions,
but that are not overly ambitious beyond that. And this approach actually does
seem to have a certain potential value. To survive into the indeļ¬nite future as a
signiļ¬cant discipline, for example, legal philosophy must claim for itself at least
some more or less distinctive emphasis. But for the sake of its own signiļ¬cance,
legal philosophy must also broaden the scope of its inquiry into areas it shares with
other academic disciplines. If there is nothing distinctive about legal philosophy
even as a matter of emphasis, its recognition by outsiders as a distinct academic
discipline might eventually be jeopardized. But if legal philosophy, on the other
hand, focuses excessively on what is most narrowly central to legal philosophy,
the interest value of legal philosophy to potential recruits might fall below the
level needed for disciplinary viability. Legal philosophers do not want to answer to
Tolstoyā™s description of the historians, providing answers to questions that no one
178 R. George Wright
Another way to almost effortlessly generate sensible predictions is to notice a
number of at least minimally independent phenomena, all tending in the same
general direction, and to then bet that not all of these phenomena will entirely run
their course before the predictions are to be scored. Here is one possible application.
For some time now, moral and related sorts of philosophy have, among a large
number of mainstream academics, been on what we might informally call one
sort or another of weight-reduction program. These related trends have long been
obvious enough, which cuts against the boldness of any predictions based on them
but adds to the short-term creditworthiness of any such predictions as well.
The phrase āweight-reduction programā is meant here as a neutral portman-
teau, encompassing various philosophical schools, phenomena, and terms. The
idea is to encompass terms such as nihilism and skepticism, noncognitivism, emo-
tivism, subjectivism, projectivism, expressivism, quasi-realism, irrealism, antirealism,
ļ¬ctionalism, error theory, some forms of relativism, extreme contextualism, conven-
tionalism, constructivism, and pragmatism, along with minimalism, deļ¬‚ationism,
various forms of reductionism, and ļ¬nally, a disposition to incredulity before all
metanarratives. As well, there is some related tendency, among those still mini-
mally adhering to the belief that some moral responses can be objectively better
than some other moral responses, to deļ¬ne basic terms, including sanctity, the
sacred, and the inviolable, along with metaethical objectivity itself, in similarly
Some of these approaches overlap or even coincide with one another. This
reduces their mutual independence. To the extent, though, that some are mutually
independent, the weight-reduction program in one form or another is likely to
affect legal philosophy for some time, even after other approaches listed here have
become spent forces. It is not unprecedented for a school of thought to continue to
exert inļ¬‚uence in a related discipline, even after it has passed its peak of inļ¬‚uence
in its own home territory. A school that originated in epistemology may fade
there but not elsewhere. We dare not count solely on this lag-time effect, however.
On the other hand, even if all the approaches listed here really derive from some
single broader attitude or phenomenon, we might well then ask how fast anyone
realistically expects that broader underlying single attitude or phenomenon to
itself be turned around. It is difļ¬cult to quickly turn around all of a dozen separate
and diverse small boats. It is also difļ¬cult to quickly turn around a single massive
It is also possible, on the other hand, that whatever legal philosophers think
about objectivity within the law itself could actually come to push back against, or
at least redirect, the entire broad weight-reduction program, on the basis of legal
philosophersā™ generalizing their insights into the idea of objectivity in the speciļ¬c
narrow legal context. This is possible but speculative, and to this point evidently
not the way to bet prudently.
Beyond moral philosophy and related areas, there seems no reason legal philos-
ophy could not also be linked in the future with literally any academic discipline,
traditional or emerging, from the hard and soft sciences through any or all of
the humanities. Legal philosophy has already embarked upon such a course in a
number of areas. Over the past thirty years or so, legal philosophy has famously
Legal Philosophy over the Next Century 179
turned outward toward economics and feminism and cultural theory, and inward
toward the philosophy of particular curricular or doctrinal legal subjects, beyond
the staples of causation, responsibility, moral luck in the law, defenses and excuses,
crime as offense or harm, and theories of punishment.
In particular, there is much more to be said about what will or should happen
if policy makers and the public gradually become convinced that free will as
commonly envisioned is either a sustainable illusion or an unsustainable illusion.
This work will take us far beyond criminal and civil responsibility, into the quality
of life itself, as all the inļ¬‚uence of the old illusions are on some theories presumed to
gradually fade. Whether traditional ideas of free will are genuinely abandonable is,
of course, at the moment controversial. Assuming especially that we can genuinely
dispense with traditional ideas of free will, the resultant depth and dignity of our
lives would then be controversial.
All this has already been widely broached, and so can hardly count as the basis of
an interesting prediction. Another rhetorical technique, though, is to merely dress
up an already-developing phenomenon in the futurized language of prediction.
We can thus safely predict that conļ¬‚icts and compatibilities between various forms
of liberty and equality will be an important focus of legal philosophy of the applied
sort over the next couple of decades. This is really a matter of current observation
and irresistible momentum, and thus it makes for a fairly safe prediction. Unless
we choose to redeļ¬ne the terms, interesting conļ¬‚icts between some forms of liberty
and equality are not all going away anytime soon.
Only slightly more venturesomely, we can safely predict a (continuing) interest
in the legal philosophy associated with what we might call the technical or artiļ¬cial
enhancement of people and their basic capabilities. We explore this further below.
Over the next century, there will likely arise many more or less independent ways
to valuably enhance or upgrade the human person. They likely wonā™t all technically
fail, be out of the price range of even the rich, cause disastrous side effects for the
consumer, be effectively legally suppressed, or be rejected by all consumers and
self-improvers, let alone by those who want an advantage for their children.
Before exploring such issues further, though, we should note that in a very
loosely similar way, it is also fairly safe to say that legal philosophical issues of