Frederick SchauerCríticas

Brief interesting overview of the role of “evidence” in learning about factual matters. very readable, doesn’t at all get bogged down in jargon. I kind of wanted it to get a little more philosophical about epistemology etc but it mostly sticks to pretty practical matters, especially legal situations (the author is a law professor after all). Don’t ignore the footnotes, there is a lot of interesting stuff in there.

Up there with Bingham's [b:The Rule of Law|7734691|The Rule of Law|Tom Bingham|https://i.gr-assets.com/images/S/compressed.photo.goodreads.com/books/1327357105l/7734691._SY75_.jpg|10523835] as a book that every citizen should be familiar with, and every politician should be run out of office for not reading.

This is not a discussion of case law related to free speech, or advice on what the laws regarding speech should be. Rather, this book is a consideration of the idea of free speech, and covers the issues one should have thought through before opening one's foot-hungry mouth about freedom of speech in the first place.

There is a view held by the uneducated and/or Americans that freedom of speech means that they (though not necessarily others) can express themselves, in a manner, time, and place of their choosing, without restriction by the authorities, fellow citizens, concerned strangers, or even friends and family. Stated this way, such a view is facile if not ludicrous; the point is that many people do not bother to consider why free speech protections exist, nor what activities are protected by it.

There is, likewise, a view held by publishers, in particular those responsible for unmoderated online discussion channels, that any form of censorship or prior restraint is a violation of free speech protections, and that "the marketplace of ideas" will surely cause a rejection of patently absurd allegations, such as (for example) that Hillary Clinton is running a child-trafficking ring out of a pizza parlor in Washington, DC. This book was published in 1982, and even then it had been demonstrated empirically and repeatedly that the public, who ultimately are the shoppers in this purported marketplace of ideas, are neither rational nor infallible.


The discussion of the value of freedom of speech in a democracy is given qute a bit of coverage:

The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all.

Any perceived inability of the population at large to discern truth does not necessarily deny that population a valuable function in the truth-seeking process. But there is no particular reason why the group that offers the hypotheses must be the group that decides which hypotheses to accept and reject.

A Free Speech Principle need not acknowledge that all people are of equal competence; it only supports the belief that there is a fundamental distinction between knowing that some people are more competent and knowing who those people are; between recognizing that an elite exists in theory and having the ability to identify it in practice.

Popular sovereignty incorporates a majority's right to be wrong. Where democracy is accepted, popular will is taken to prevail over any other method of arriving at knowledge, no matter how much better these other methods seem.

This last, in particular, is notable in the face of political rhetoric which ignores facts or reasoned argument in favor of loud, unqualified and unresearched assertions. The method at which an idea or opinion has been reached is irrelevant in a democracy; all that matters is the number of people who have been talked into believing or favoring it.

A discussion of prior restraint incorporates some lessons for the political-correctness crowd, whose free speech problem (and what a problem it is!) was recognized a decade before the term even came about:

A code, or a definition of the object of regulation, may only be as complex as the understanding of the least teachable member of the enforcement chain.

It is a fact of life that certain very complex codes break down because ordinary people can't keep all the distinctions, caveats, and exceptions straight in their heads.

The more complicated a code of behavior becomes, the fewer people are able to follow it. Keep it down to one line if you can.

In the chapter on defamation, there is an admonishment to the Gawker or Murdoch types:

The private lives of pop stars and professional footballers, for example, while clearly of interest to the public, are of less legitimate concern [than politicians and business leaders]. Information that interests the public it not necessarily information whose dissemination is in the public interest."

...swiftly followed by the dictum that any particular case must take into account "the degree to which the individual benefits from and perhaps solicits or encourages publicity". So there, fame-mongers.

One could go on and on chucking in excerpts from this book and applying them to the technological, political, and cultural issues that have been dominating the headlines for the past few years. Well, let's have an end to that - just read the book already.

Muy buen libro, con la claridad sajona explica algo del razonamiento de los abogados y especialmente de los jueces, algunas no son apropiadas para aquí otras muy presentes

A demokrácia és a szólásszabadság határai című, Frederick Schauer tanulmányait tartalmazó kötet egészen friss mű, noha régebbi szövegeket is tartalmaz. Eredeti, angol nyelvű változata ebben a formában nincsen; a Koltay András szerkesztő által a szerzővel együttműködve kiválasztott 26 szöveg elsősorban amerikai jogi folyóiratokban, illetve tanulmánykötetekben jelent meg, és mindegyikük a mai napig friss, élő, a mai kutatásokban használható, illetve az érdeklődők kíváncsiságát kielégítő tanulmány. A válogatás nem volt könnyű, tekintve Schauer professzor terjedelmes publikációs listáját; a megszületett kötet átfogó keresztmetszetet nyújt nem csupán a szerző szólásszabadság-jogi gondolkodásmódjáról, hanem általában az amerikai szólásszabadságjogról is. Schauer jogi gondolkodása ízig-vérig amerikai, de – számos kollégájával ellentétben – egyáltalán nem elutasító az európai jogi gondolkodással szemben sem, mi több, nem követel az amerikai szólásszabadságjognak magától értetődő primátust az európaival szemben. A rendkívül elmélyült gondolatmeneteken és egy-egy kérdés pontos felvázolásán túl ez teszi munkásságát Európában is igazán vonzóvá; segít megérteni az amerikai jogi gondolkodást, és nem zárkózik el az eltérő megközelítések felett átívelő hidak építésétől sem.

Imagine the results you'd get if, when thinking about the category of "religion," you took fundamentalist Protestant Christianity as the sole example of the category. When the specific and and the generic become synonymous, pretty strange things happen.

So it is here. Schauer wants to revive Bentham's and Austin's argument that coercion is the thing that sets law apart. Unfortunately he views the American legal system not only as the source for illustrations, but the very essence of law. The weight of his argument is that the "puzzled man" Hart imagines, who obeys the law because it is the law, and not because of any threatened sanction, is largely a myth -- but then goes on to admit that the "puzzled man" is probably much more common in other societies than our own. Unfortunately, he then plows ahead as though this fact does not negate his attempted description of "law" general. Arguably American law is uniquely dependent upon law's coercive power because of the decayed influence of other sources of normative systems, such as family, community, and religion. Looking to a hypertrophied instance as the prototypical instance of "law" causes problems throughout this text.

That aside, the greater problem is that Schauer misunderstands the problem. He regards his chief intellectual adversaries to be those like Hart, who tried to relegate legal coercion to unusual cases, and perhaps he deals adequately with that challenge (not really, but let's pretend. The difficulty he cannot overcome on this prong is that Schauer demands a strict separation of law from morality. He recognizes this, and devotes a section to the problem, but concludes without the outcome he requires to move forward.).

The true obstacle, and one he barely recognizes, is that, yes, law is coercive, but so is every other institution of norm regulation. Religion, custom, and etiquette all extract penalties for rule violation. Most other writers then go on to say that it is the kind of punishment that is crucial, but Schauer cannot do that since for other reasons he has expanded legal coercion so expansively that even public embarrassment at being charged qualifies. Law is therefore neither unusual nor special in this regard. To the extent we are trying to identify something that warrants treating "law" as a distinct social category, we'll need something other than coercion.

While this book has one or two interesting ideas that merit further consideration, the main thesis is a deadend. Austin shall deservedly remain in the jurisprudential grave where Hart interred him.½