Dworkin on the Intoonfada


Philosopher and legal theorist Ronald Dworkin has an interesting short essay on the Muhammad cartoons bruhaha in the latest New York Review of Books. After patting American editors on the head for declining to print the offending toons, thereby sparing the tender feelings of Muslims everywhere (and, presumably, those of employees at any embassies that might be torched by the especially sensitive), Dworkin goes on to offer a political-liberal defense of free speech and "the right to ridicule."

For context: Since John Rawls' seminal book Political Liberalism, it's been a commonplace among political theorists to distinguish between "comprehensive" liberalism–rooted in a broader conception of the deep source of human rights and dignity, of the good human life, the nature of persons, and so on–and "political liberalism," which eschews metaphysics and takes as its starting point the necessity of establishing a framework for the peaceful coexistence of diverse peoples who aren't going to ever agree on deep ethical questions. A comprehensive liberal defense of the cartoons, for instance, might stress the expression of even offensive political thoughts as an important exercise of our reflective rational capacities, point out that speech of this sort is not in itself harmful, apart from the disposition of certain hearers to be incensed by it, and leave it at that.

Dworkin's defense, on the other hand, stresses the role of open discourse—and ridicule—in legitimizing democratic political outcomes to people with very different worldviews:

If weak or unpopular minorities wish to be protected from economic or legal discrimination by law—if they wish laws enacted that prohibit discrimination against them in employment, for instance—then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult as part of public debate may legitimately adopt such laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to accept.

On this account, to put it in a somewhat less friendly fashion, free speech is a kind of consolation prize for the loss of freedom of association. If employers and landlords aren't going to be able to actually (non-violently) act out their distaste for certain groups, in other words, we need to at least let them talk about it so they can't claim they didn't get a fair hearing before that right was restricted. So, Dworkin explains:

It is often said that religion is special, because people's religious convictions are so central to their personalities that they should not be asked to tolerate ridicule of their beliefs, and because they might feel a religious duty to strike back at what they take to be sacrilege. […] But we cannot make an exception for religious insult if we want to use law to protect the free exercise of religion in other ways.

This actually brings out what's always been a slightly strange tension—at the theoretical, if perhaps not the historical or pragmatic level—in the way we treat religion: On the one hand, we proclaim the virtues of government liberal neutrality toward religious practices, yet we typically require legislators to meet a far higher standard when legislation will burden religious practices as opposed to others that have their origins in more secular convictions. To pick a simple case, churches may decline to hire women as priests, but an employer who on secular grounds (maybe owing to a crude misogynistic impulse, maybe with more elaborate rationalizations) wanted to do the same would obviously run afoul of the law. It's not clear why one justification should be in principle more sacred to government than the other.

There's parallel tension in Dworkin's argument–despite my general sympathies for the political liberal project. To wit, if religious conviction is important enough that we want to protect it in these "other ways," then why are they only so protected when we consider people in their capacities as renters and employees, whereas similar (perhaps the very same) convictions must settle for the milksop of insulting expressive freedom when we consider people in their capacities as landlords and employers?