Yesterday evening in the Rockefeller Center, Frederick Schauer '67 spoke on "Legal Principles, Legal Categories, and the Domains of Free Speech" to an audience of approximately 60 people.
A professor at the John F. Kennedy School of Government at Harvard University, Schauer is a '68 Tuck alumnus and also holds a law degree from Harvard.
He began by telling a story designed to demonstrate that the "categories of the law are not categories of the world," and not everything that could happen in the real world can be codified in law.
Such a claim might mean that if a law granting complete freedom of political speech is to be written, there could not be a law restricting, for example, the marching of Nazis in a town populated by Holocaust survivors.
Schauer, however, maintained that both Germany and Israel, countries with "vigorous and robust free speech," restrict such expression of opinions.
The very idea of what political speech is simply a social construct, he said.
Although he said that "law is about principles," and that we hold the idea that "legal categories ought to be a certain size," for "when you get too particular, you're just not doing law," he argued that there no basic abstract categories, and that we define the categories based simply on social constructs.
He said, as a result, the way we define these categories is very important and thus "the categories of the world can and should make a legal difference" in defining interpretations of abstract laws.
Our legal system includes laws regarding securities, consumer protection, sports " all laws designed around the categories of the world. Indeed, he said being to unparticular in the law would be "unfaithful to the world in which we live."
In conclusion, Schauer said "yes, we can follow rules," but "we want the rules constructed on what we know [to be true] in the real world." This makes the project of free speech a very complex issue, stressing that it is even more so now with the advent of the Internet and other new forms of media.
"We face an increasingly complex world," he said. Sometimes in forming categories to construct our laws around it we end up with funny-shaped categories -- such as saying that Nazis do not have the right to free political speech -- but he added that "it has a funny shape only because the world has a funny shape."
Schauer has taught at the College of William and Mary as well as at Michigan Law School, and also has published numerous books, including "Playing by the Rules," "Philosophy of Law," and "Free Speech: A Philosophical Inquiry."
He has also advised countries such as South Africa, Estonia, Mongolia, and Vietnam on putting free speech into their constitutions.
