That's Offensive! Criticism, Identity, Respect
Stefan Collini
Seagull Books, 69pp, £9.50

While I was working on a book on gay rights and law, I presented several chapters at a work- in-progress workshop at the University of Chicago Law School. As I've come to expect, my colleagues assailed me with criticisms of all sorts, tough and thoughtful, from all sides of the political spectrum. Unlike most other law schools, we have that rare thing - an open, undefensive yet rigorous intellectual community, and it is very precious.

Afterwards my most conservative colleague wrote me an email, saying that he hoped nothing in his trenchant challenges to my position had caused offence. Actually, his manner had been extremely civil, but since he is capable of intemperate and sarcastic utterance, and (like most of us) does not have perfect self-knowledge, I thought it was well-advised that he asked. He was showing the sort of care about personal civility that sustains our community and makes it so different from the ugly free-for-all that sadly characterises much of American political life.

This story illustrates both the great virtue of Stefan Collini's eloquent argument - its ringing defence of rigorous criticism - and its most glaring gap: its failure to appreciate the virtue of civility and the special demands it makes when a majority is discussing stigmatised groups.

Collini values, as I do, the no-holds-barred give-and-take of argument, and he believes, as I do, that open debate of this sort is a valuable ingredient in political life. His brief manifesto says that we have entered an era in which people shrink from challenge and want to be surrounded only by the like-minded; or those who will not subject the cherished beliefs others hold to searching criticism. Particularly when beliefs are bound up with a religious, ethnic or other group identity, people expect to be able to shield them from criticism, and would-be critics have learned to silence themselves. We are all the worse for this self-censorship, Collini argues.

All of this is right on target. Even more so is Collini's insistence that the threat of violence should never be used as a device to stifle de­­bate: a climate in which people fear violence if they give offence is incompatible with an open political culture in which all receive equal respect. As a historical claim this has some problems, since the founders of the United States of America - while being Enlightenment arguers - were also inordinately fond of duelling, and this bizarre ritual of male pride did not stifle the growing democracy (though it did rob it of one of its greatest rational arguers, Alexander Hamilton). But we can certainly agree that it is best if people do not resort to violence when honour is outraged, or use the implicit threat of violence to stop others from criticising them. So far, so good.

Beyond this, however, lie many questions. What forms of argumentative speech should be illegal? Collini doesn't really face this one. It is tough, because many forms of speech are currently illegal - bribery, threats, unlicensed medical advice, fraudulent offers, defamation and many more; and any one of these could be given the superficial form of a rational argument to shield it from the law if the legal standard were that all rational argument is protected. I assume that Collini is not challenging the traditional torts of defamation, invasion of privacy, intentional infliction of emotional distress, or even (a case he does briefly consider) the legally defined offences of racial or sexual harassment. But then his position is less extreme than its rhetoric at times suggests, though he does make a welcome objection to Britain's archaic blasphemy law.

Next, which offensive speakers should be protected by law from violence and the threat of violence? That's not the same question, because in offering a bribe or making a fraudulent offer, one does not forfeit the law's protection against violence. Some forms of speech, however, do remove that protection: the credible threat of death or gross bodily injury. Again, this would have been useful to discuss, but it lies beyond the scope of Collini's manifesto.

The real gap, however, is where I began: civility. A robust critical culture is not easy to maintain. It is rather like a garden, which must be carefully pruned of various weeds, such as contemptuousness, vanity, intemperance and snarkiness. Collini says that, in arguing, one should always respect the opponent as a rational being, first and foremost. But what does that mean? Sarcasm, eye-rolling, audible sighing, jokey asides when someone is giving a paper, these things seem to me to undermine that respect.

But now comes the real problem. The duties of civility turn out to impose different demands on members of the majority when they are dealing with one another and when they are dealing with previously or currently stigmatised minority groups. Because women and African Americans, for example, have for centuries been treated as if they have no right to be in the public assembly room or the academy, special care has to be used when addressing them with critical arguments.

If I give a feminist paper and a colleague rolls his eyes, or speaks in a snarky manner, that conduct is continuous with centuries during which women were assumed to be incapable of rational performance, and with a more recent era during which women's studies and normative feminism were assumed by most academic men not to be genuine fields of academic inquiry.

Given that context, it is good to be particularly careful. And with this virtue, as with all, context is everything. Colleagues who are trusted friends know they can tease me about my feminism and my left-wing politics (a stigmatised minority position in America), but that is not the recommended modus operandi for those same people when confronting a female or African American job candidate, or, indeed, anyone who is not a trusted friend of the person being teased. Sometimes I get the feeling that Collini is hearing people urging others to be civil, and mis­interpreting it as a demand that they stop arguing. The two demands, however, are utterly different, and one can't sustain a rational dialogue without the virtue of civility. A demand for delicacy and caution is not a demand for silence, it's a necessary aspect of making speech flourish.

Because Collini is right about the goal for which we should strive - a community of rigorous and open argument - it seems unfortunate that he is not attuned to the problems of civility often faced by unpopular minorities who are making new demands. Arguments are not abstract propositions in the air. They are human performances towards other humans, in which the choice of vocabulary, the tone of voice and the look in the eyes all matter for whether the performance is virtuous or vicious. So we should seek the goal to which Collini points us, but pursue it with all our ethical and emotional wits about us. l

Martha Nussbaum is professor of law and philosophy at the University of Chicago. Her most recent book is "Not for Profit: Why Democracy Needs the Humanities" (Princeton University Press, £15.95)