Neil Addison, the distinguished barrister and author of the legal textbook, Religious Discrimination and Hatred Law (Routledge Cavendish) shows some of the perverse consequences that can be expected to flow from Part 2 of the Equality Act 2006, which comes into force today, along with the Sexual Orientation Regulations. ‘Causing offence’ is now legally relevant and likely to give rise to a good deal of over-zealous litigation. It is worth reflecting on what John Stuart Mill said about giving offence.
He thought it far more important to learn from each other through vigorous criticism. In On Liberty, first published in 1859, he warned against allowing perceptions of politeness to get in the way of mutual learning through unfettered debate. Freedom of speech was in the common good:
“It would be well, indeed, if this good office were much more freely rendered than the common notions of politeness at present permit, and if one person could honestly point out to another that he thinks him in fault, without being considered unmannerly or presuming. We have a right, also, in various ways, to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us. We have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom he associates. We may give others a preference over him in optional good offices, except those which tend to his improvement. In these various modes a person may suffer very severe penalties at the hands of others, for faults which directly concern only himself; but he suffers these penalties only in so far as they are the natural, and, as it were, the spontaneous consequences of the faults themselves, not because they are purposely inflicted on him for the sake of punishment.”
For Mill the chief advantage of a free society is that we are free to try out different lifestyles, but if we are to learn from the experiments then criticism should be unfettered, even to the point of shunning the company of people whose conduct we think harmful. Discrimination in its original sense of differentiation is central to the growth of human knowledge and understanding.
It’s worth checking out the writings of Richard Epstein on ‘discrimination’. He thought liberty would be safer with the repeal of all anti-discrimination laws in favour of a ‘right to discriminate’.