“The right to fancy arguments should not ignore the hurt to classic legal arguments.”

Ius est ars boni et aequi. (D 1.1.1.)

Iustitia est constans et perpetua voluntas ius suum cuique tribuendi. (D 1.1.10.)

Kerry Williams published quite an interesting piece on free speech in the Sunday Times on 28 August 2016. As I learned from her profile, she is a distinguished attorney working within a prominent law firm, possessing high academic qualifications and a fine publishing record. So her opinion deserves attention. But, in my humble opinion, the arguments and ideology displayed by her threaten to destroy classic legal thinking. As I am trained in Roman and Austrian law, I may, in all modesty, make my surely sometimes-pointed and polemic remarks, quoting Williams first (in italics), and then make my comments.

corpus-juris-civilisAs we learn from Justinian’s Digesta, the essence of Law is an art to find the valuable and appropriate. By making or interpreting law, we have to start the journey from a general average evaluation of things, objective, factual and realistic. This is a static element.

But then exercising law – and Ulpianus demands a lot from us –  is an ongoing work; a strong-willed enterprise to give to everyone what is due to him (or her, or it, or whatever, or maybe both, or just questioning – nobody shall feel excluded). This is a dynamic element.

These are not contradictory elements, as all wannabe Hegelians believe. These two elements of thinking should work hand-in-hand in a legal mind.

The right to freedom of expression is often abused, usually by those in power and privilege.”

Of course, rights can be abused, otherwise we would not have lawyers, judges, and courts to settle legal disputes. Of course, I must have a certain power, or maybe I must be free of scruples, to abuse a right. Therefore, cultures developed institutions to protect and control people, as well as other institutions, which posses power. For quite a long time, we have called this the ‘rule of law’.

The term ‘privilege’ is used by Williams not in its legal sense, but in an ideological way, giving it its necessary, derogatory or pejorative meaning.

Let us be precise: A privilege is a right not enjoyed by all, but by one man or a group of men. As a permanent resident in South Africa, I do not enjoy the privileges of South African citizenship, but instead those of Austrian citizenship. Williams, as a partner at Webber Wentzelenjoys the privileges of this partnership, and I do not. So what? What is the big deal in this argument?

To introduce the term ‘privilege’ into the debate using its sociological or ideological meaning, is poisoning the legal argument. As we are moving within the realm of law, legal definitions have right of way. Of course, we know from public discourse from the lefties, that privilege is bad and that the usual suspects have to check their privilege before uttering an opinion. Well, I checked my privilege: I liked it, and I have decided to enjoy it.

Men, white people, straight people often unconsciously [how does KW know what I am doing consciously or not?] invoke it to protect blinkered and hurtful views.” [Of course, what the usual suspects utter can only be hurtful to the others, the usual victims as being] “women, Black people“  [yellow, red, green, brown excluded?] “and LGBT people” .

Sorry, she is not up-to-date with the lingo of the eternally-annoyed and insulted. The list is currently: LGBTTIQ (lesbian, gay, bisexual, transgender, transsexual,  intersex and queer), and should in all honesty be displayed correctly.

These people are “hurt and paralyzed by these views.”

No, they are not. Paralysis is a term from pathology meaning either a loss or impairment of voluntary movement of a body part, or a state of helpless stoppage, inactivity or inability to act.

As Williams refers to a pending court case against a certain Jon Qwelane for “anti-gay diatribe” obviously brought in by people who like to play the usual victims – I may call them the professional sissies – they must have been the opposite of being paralysed. Take a hint from one who knows: Before using a special term from outside your own profession, just look at a dictionary.

Williams insinuates that the usual suspects, more or less, always utter opinions which ‘hurt’, or are aimed at, the usual professional sissies.

What about all the ultra-left diatribes uttered by all kind of bolshies against the middle class, entrepreneurs, capitalists, aristocrats, elites,  farmers, or the rich? They also have feelings, do they not?

The law is not good at acknowledging feeling. Feelings are emotions [surprise, surprise] emotions are for the weak.”

That is simply not true.

Of course the law does acknowledge pain and suffering. Not only that of a physical nature, but even psychiatric injury or ’emotional shock’. This can easily be found by studying court cases dealing with, for example, injuries from traffic accidents.

And since Homer gave us the Iliad and the Odyssey a few thousand years ago, we know that even the greatest heroes, and even the gods, express emotions.

It is time to quote an eminent Austrian philosopher, Karl Popper, who wrote:

about a certain tendency to be observable in certain modern philosophical schools, the tendency to uncover, to unveil the hidden motivations [remember Williams’ argument with the subconscious?] of our acts. The sociology of knowledge belongs together with psychoanalyses and certain philosophical schools to that group aiming to unveil the ‘senselessness’ of the depositions of their enemies. The popularity of such a tactic lies in the easiness with which it may be applied and the satisfaction it gives to whose you see through the matters and silliness of the uneducated. This is quite a harmless divertimento but it results in the destruction of every discussions intellectual base by a double guarded dogmatism as I may say. And that is pretty much similar to a totalitarian ideology. … Every critic and discussion becomes impossible… similar it is in the case of psychoanalysis… they can explain every argument away by showing that it is the work of ‘Verdraengung/repression’ by the critic. And the philosophers of sense only need to point out  that the deposition of their adversaries are senseless, that always being true as the term ‘senseless’ may be defined in a way that any discussion about that becomes by definition senseless. In a similar way the Marxist explain every idea of their enemies which differs from their own with class prejudices. … Such methods are easy to handle and most amusing for the one who handles them. But it is evident that they destroy the fundament of a rational debate and must lead finally to anti-rationalism and mysticism.

– The Open Society and its Enemies, Volume 2, Francke Verlag Muenchen, 1977, p 164f

No, the issue is not about the law not acknowledging something and must therefore be reformed. It is about a power play, a moralistic Blackmail – pun intended – and a cult: the cult of the eternally suppressed, annoyed, insulted, hurt and downtrodden; all of them, of course, properly represented by a partner from a prominent law firm.

Now, let us turn to the real questions:

  • Do rights have limits?
  • Do fundamental rights also have limits?
  • What limits shall set to the fundamental right of free speech, having in mind the advice of Celsus and Ulpinianus, and the concept of the ‘rule of law’ and ‘fair play’?

Of course rights have limits. Otherwise it would be arbitrary rule.

Of course, fundamental rights also have limits. Because they are fundamental and of special importance, we have to be careful in setting limits, especially if the state or any well-organized pressure group wants to limit it; with noble intentions, of course, as always.

The limits which seem to be reasonable for me, are drawn from Austrian law.

First of all, we find in the Civil Law Code the principle that chicanery and frivolous behaviour is unlawful, and may lead to a claim for compensation of damages. Chicanery means exercising a right for the sole or overwhelming purpose of damaging another one. Frivolous is an attitude to use legal remedies and possibilities for molesting others with nullities.

If we apply these regulations properly, we can forget all the deliberations about hate speech, harassment, or insulting outbursts. The excellent thing is that those quoted terms are clearly defined and in and of themselves incorruptible by chicanery and frivolous behaviour.

Let us turn to the Criminal Code of Austria. Offending, insulting, and deriding, entitles the violated party to institute a private criminal charge. Slander and malicious libel are official delicti. That is fine and fair, as well as balanced.

Further examples of delicti officiali are: grave insults to religious teachings, the dissemination of wrong, disturbing rumours, or incitement against certain groups in a way seriously endangering public peace and order.

Now we can see that only those expressions of free speech are outlawed, either by civil or criminal law , which

  • serve no other purpose than significantly damaging or molesting others,
  • are either utterly vulgar or plain and open lies,
  • seriously endanger the fundamentals of law and order, the stability of the state, and protection of the rule of law, fair play and fundamental rights.

This leaves millions, billions of ways to criticize, verbally attack, scrutinize, make fun of, exercise irony, make combative statements, be sarcastic, use irony, be polemic, without even coming near these limits, if (and, I should emphasize if) interpreted in a fair and equitable way.

What we experience now from some pressure group, is the over-sensitive invocation of a new crimen laese maiestatis, or, better now called a crimen laese vulgus, inepti et suspecti.

Terms like ‘hurtful’, ‘harmful’ – instead of ‘damage’, as a classic legal term – or ‘hate’, are destroying proper legal analysis, if used in an ideological context as described by Popper above, or used with psychologically-inspired connotations of a nebulous and blurred character.

If I bring ‘wishy-washy’ into law, I destroy the Law.

“Almost every week there is another incident of racist behaviour…”

No, there is not. In South Africa the more than 50 million people living here have very diverse backgrounds in ethnicity, religion, wealth, culture, tradition, language, status, education, and so on. That means that every day we have millions upon millions of social interactions between people possessing these very different backgrounds. If the South Africans were not basically tolerant and pragmatic people, you would have experienced bloodbaths after bloodbaths long ago. In strong opposition to all these rants uttered in the media, as an immigrant who arrived in 2007, I do not think South Africa is a racist society, and that racism is not the ‘elephant in the room’. If someone constantly sees elephants in a room he (no, she) should reconsider his drinking habits.

“… the role of psychological or communal harm which causes societal marginalisation [that is when the pressure group goes to court] or rupture of the body politic is not given the significance it deserves.”

Thank (non-existing; just to please the atheists, they also have feelings and shall not be marginalized) God it is like that. It would be utterly destructive to implement and introduce the standards and feelings of professional sissies into the law. What they do is attempted chicanery and frivolous, and should be laughed out of court!

But the absolute gem in this article are the considerations around Brett Murray’s The Spear painting of the President.

Personally, I found that piece of painting – I avoid saying ‘art’ – disgusting. Not because I like the President, but because I am most strongly against him. But also, art has its limits and should not move into the gutter of pornography. Even the most despicable politician should not be drawn through the gutter. But the issue is definitely not about “a privileged white man portraying a naked old black man…” The painting would, in my humble opinion, be equally pornographic if a black painter portrayed a white politician. Oh, I forgot, that was done some weeks ago by one whose name was absolutely forgettable, on Helen Zille. Any public outcry from the lefty crowd? I did not hear anything!

“Black people have been systematically dehumanized for 400 years.”

To be exact, 364 years, if we exclude the Portuguese shipping around…

Please stop that nonsense! If ‘they’ have been systematically ‘whatever’ for about 400 years, no one would be left today.

The history of the European outreach to other continents is a dramatic history – otherwise it would not be history – a history of great and constructive, noble and evil, mean and short-sighted, progressive and aggressive events. It is not a criminal history, but, it too, was a glorious history.

Misused psychology – which, today, in most cases only produces phrases and jargon, the professionally shed and spilled tears of the ones who make a profession, and then, of course, an income out of being sissies – has absolutely no place in legal considerations.

si-thomas-sowell-2016Individual hurt and communal harm and contributing to marginalization…

These are absolutely unworthy terms to be considered by a legal thinker. We cannot accept arguments expressed by deliberately using blurred, obscure and nebulous terms and deliberations infecting the Law and legal thinking, which leads to totalitarian and arbitrary results. The ‘mysticism and anti-rationalism’ mentioned by Popper comes to mind.

The exercise of rights may never be brutal, but may be robust, especially in the realm of politics. And that it is. But at least Williams did not use the term ‘trauma’, which is at least something…

Does anyone feel harmed by this article? If yes, then so be it.

Finally I will quote Thomas Sowell, the most eminent black American economist and philosopher:

The problem is not that Johnny can’t read. The problem is not even that Johnny can’t think. The problem is that Johnny doesn’t know what thinking is; he confuses it with feeling.

What a pity that, in this case, Johnny is a ‘Joan’, and an attorney. Dixit!

And after studying Williams’ emanations for so long, I need a double KWV – 10 years old! Cheers!

Dr.iuris Harald Sitta is an Austrian attorney emeritus and business owner who immigrated to South Africa in 2007.