Dworkin on the Intoonfada

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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?

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  1. “…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?”

    Because of the power imbalance. Since landlords have greater power of their renters than vice versa, and since employers have greater power over their employees than vice versa, it is assumed that landlords and employers can “take care of themselves” with the legal and political protections already at their disposal.

    I know, I know, not a popular concept around here, an immigrant hired to clean toilets at minimum wage has exactly the same level of power as the Radisson Hotel corporation when negotiating terms of employment…

  2. Much of this post seems to be just high-falutin language to express pretty simple concepts, but I do like it that Julian points out that the 1st Amendment is nefariously imbalanced in a way. Congress should be proscribed from making any law that prohibits the free exercise of any activity that doesn’t impede on somebody else’s rights. Perhaps that’s what the 9th Amendment was about? I also think, as I’ve said before, that rhetoric about the sacredness or importance of “free expression” skews the debate into one of competing (and abstract) values between different cultures, when it really just boils down to the much simpler fact that you have no right to exercise violence against someone who has not committed violence (or credibly threatened it) against you.

  3. joe,

    We’ll never agree on the state’s role in employment matters, but just to be clear on the basis of the libertarian position, it’s not that toilet cleaners have the exact same amount of power as the entire Radisson Hotel corporation, but that no one has a right to a job, and therefore firing or not hiring someone is not an abridgement of that person’s rights, and thus the rights of whoever fired or didn’t hire the person should not be at stake over the action (or nonaction).

  4. This was the point I was trying to make when everyone was cheering the religious exception carved out for the Native Americans who drop peyote/mescaline etc. It’s an unfair, unprincipled standard. Religion needs to get in line with every other belief when it comes to government treatment, or we’ll end up with a pre-French Revolution Second Estate, one with favortism and exceptionalism from the government because religion is “different”.

    Can I object to the war because of philosophical beliefs, ones more thought out and deep than most religious ones? No, but any Quaker under the sun gets a free pass. It’s garbage, pure and simple.

  5. I’m not sure why we should consider Political Liberalism a “seminal” work. It seems if we unmoor our political philosophy from any kind of foundation than it loses a lot of its force.

  6. If me and my buddy were imprisoned on false charges, and then he got released after giving a convincing albeit feigned sob story, would I be happy for him for his freedom or resentful over how he gained it even though he never deserved anything less? Well, maybe a little of both….

  7. It seems to me that the cartoon issue is not one of free speech but rather one of freedom of conscience.

    As a non-Muslim, I am not bound by Muslim law. Consequently, I feel I may draw whichever prophet I please. I may eat bacon. I may eat during Ramadan. I may have an interest-bearing bank account.

    I presume the Danish cartoonists are also non-Muslims. They are not bound by Muslim law, either.

    The only people who _are_ bound by Muslim law are… Muslims. At least, those Muslims who chose to be bound by it at any given time.

    Frankly, I find it highly offensive that members of one religion should try to force me to follow their religious laws.

  8. Hear, Hear, fyodor.

    Not to mention the fact that if there is a whole bunch of legal baggage that comes with offering me a job, businesses will do whatever they can to avoid offering that job in the first place (see American inner city economies). The fact is, markets exist, and anytime you place added burdens on a player in that market, the market is going to react against it in the self interest of the market’s participants.

    Kebko

    PS: A nice exercise – read a nice, thoughtful post like fyodor’s post at 4:03, then very quickly click on his name. 😉

  9. Fyodor-

    Gosh, I thought the language was middle-falutin’ at most.

    John-

    While I disagree on the merits of PL as a book, note that to call a book “seminal” (as with the fluid from which we get the word) is only to say it’s generated something, not necessarily to approve of what was generated. And there’s no real question that PL has been enormously influential and spun off a reasonably large body of subsidiary work.

  10. Julian is far too kind to Dworkin, whose “interesting short essay” I found to be pure drivel. (And it wasn’t “short.” However many words long it was, it was that many words too long.) The cancer of political correctness has eaten away at liberals to the extent that they are much more interested in protecting people from free speech than they are interested in protecting free speech. For too many liberals, liberalism is a matter of feeling sorry for people rather than believing in the power of the free intellect. Dworkin’s cringing, sniveling, cowardly prose is the furthest thing from “philosophy.” There is nothing more pitiable than a mind afraid to think.

  11. PS: A nice exercise – read a nice, thoughtful post like fyodor’s post at 4:03, then very quickly click on his name. 😉

    As John Lennon was wont to say, everything is the opposite!!

    Gosh, I thought the language was middle-falutin’ at most.

    Julian, that’s you talking! 🙂

  12. Fyodor, when the attractive female gets off of a speeding ticket by shaking her tits, she should expect scorn, ridicule and being called a whore for making an unprincipled appeal to base human emotion.
    It may have you avoid the ticket, but you lose self-respect, and religion’s failure to render unto Caesar’s what is Caesar’s makes them look like banal hypocrites, rather than principled freedom fighters.

  13. Ayn Randian,

    Well maybe. I’ve heard of women using their wiles to get out of speeding tickets (albeit usually in a more subtle manner than you describe) a couple of times, and I mainly thought it was funny. But then, that’s me talking!

  14. Raymond, damn right! How I tire of being told how important it is to “respect” various religions and cultures when “respect” so often can only be demonstrated by deferential behaviour that is almost as unctious (sp?) as actually being bound by their tenents.

    Ayn Randian… You always make the case in a way that does your tag proud!

  15. Gah! That title had me scared for a moment. I feared that Andrea has risen from her grave to opine once more.

    I’m keeping my pistol loaded just in case of Radical Feminist Zombie attack!

  16. fyodor,

    First, you should let us know when and where you’ll be playing.

    Second, in regards to yor reply at 4:03 – be that as it may, the question Julian asked was about whether there was a legitimate, principled reason to have laws that protect employees/renters from discrimination by their bosses/landlords but not laws “protecting” bosses/landlords from being discriminated against by their workers/tenants. That was the question I was answering.

  17. “religion’s failure to render unto Caesar’s what is Caesar’s makes them look like banal hypocrites, rather than principled freedom fighters.”

    What if Caesar says you *don’t* have to render unto him — does a religious person still have to render anyway?

    Of course, there’s always the concept of “going the extra mile,” but that would be altruism, wouldn’t it, Ayn?

  18. Bonar, my point was that religions are always trying to use loopholes in the law so they don’t have to follow the rules because belief in “god” is so sacramental they don’t feel they have to do so. The Caesar’s comment comes from that, to whit, the use of the First Amendment as a club on the part of the religious not to fight for the liberty of all but simply to carve out privilege for themselves.

  19. joe,

    “Because of the power imbalance.”

    You’re not, I guess, talking physical power here. Then what–economic?

    It’s just a numbers thing, isn’t it? If a hundred workers form a union from scratch, then they have more “power” over the 101st than vice versa. An individual is more affected by rejection from a group than the group is by estrangement of a member. I think this is less a social malady than fairly benign mathematics. And whatever goes for a generic group arguably goes for a business (which is, in essence, a number of individuals pooling their labor).

    Crux: “Because of the power imbalance” is a non sequitur. You need to explain why the existence of a power imbalance, however fangless it might or might not be, calls for the solution you support. How does a power imbalance make a restriction on freedom desirable or necessary?

  20. “It seems to me that the cartoon issue is not one of free speech but rather one of freedom of conscience.”

    It seems to me that it’s about levels of anaylsis: a “knee-jerk” superficial analysis, or a thoughful and curious one. With these cartoons, we’re not dealing with something akin to a KKK rally, that needs some absolutist principle of “free speech” to defend it. Not even close. This paper and these cartoonists were primarily exploring, not judging. That is the more important feature of a liberal society.

  21. How does a power imbalance make a restriction on freedom desirable or necessary?

    After all, nothing cures a small power imbalance like increasing the biggest power imbalance – that the state has over its subjects.

    joe, what is this “power” of which you speak, which the monocle-wearing, mustache-twirling capitalist/landlord/employers have over their helpless prole subjects?

    The proles are free to leave, after all, leaving their capitalist overlords with a hit on the bottom line. The proles also, in this day and age, have the ability to sic various minions of the state on landlords and employers.

  22. Kevin,

    Do you have a job? If so, please go tell your boss you don’t think his job performance is up to snuff. Let us know how it goes.

    Also, I didn’t call for any particular solution I support. First things first, dude – first we identify the problem, then we figure out what to do about it.

    “How does a power imbalance make a restriction on freedom desirable or necessary?” There are more restrictions on freedom than just those that come from the government. You are not going to define away the restrictions a boss can place on his employees’ freedom.

    RC, I’ll let you play with your own straw men. Get back to me when you can discuss an idea like an adult.

  23. “How does a power imbalance make a restriction on freedom desirable or necessary?”

    It doesn’t, necessarily. It is only when the imbalance in power is exploited that it becomes a problem – sort of like antitrust law. You can be a monopoly; you just can’t act like a monopolist once you get there.

  24. Ayn Randian,

    The clergy (no matter what their station) were the first estate (premier ?tat) in pre-Revolutionary France, not the second estate. The second estate (second ?tat) was the nobility (be it of the robe or the sword). This seems to be a common misunderstanding (even amongst professional historians who do not specialize in French history).

  25. Ayn Randian,

    Of course the third estate (tiers ?tat) was everyone else; merchants, peasants, artisans, mechanics, etc. (though some professions and even trades – like glassblowing – could be done by members of the second estate).

  26. Ayn Randian,

    I could recommend several texts on the matter (primary and secondary), but that would raise the ire of biologist.

  27. Owell on laughing at totalitarians (e.g. Muslims:

    A military parade is really a kind of ritual dance, something like a ballet, expressing a certain philosophy of life. The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim. Why is the goose-step not used in England? There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing. It is not used because the people in the street would laugh.

  28. Julian Sanchez,

    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?

    It has a lot to do with the “liberal” concept of distributive justice which necessarily clashes with our more Nozickian view. Its a simple difference in worldviews.

    Of course one must also ask whether these impositions by government actually work in real life, and its likely that they don’t.

  29. Of course one must also ask whether these impositions by government actually work in real life, and its likely that they don’t.

    They may work to some extent and/or temporarily, but restrictions always negatively affect all concerned parties in some way.

  30. Mr. F. Le Mur,

    They seem to only temporarily be able to effect the private ordering of individuals.

  31. joe,

    First, if I ever play Boston, I’ll be sure to let you know!!

    Next, I most certainly know what question you were answering and I understand your logic. You went on, in that post, to lampoon the libertarian view of employment matters as being based on the notion that employers and employees are equal in power by saying: “an immigrant hired to clean toilets at minimum wage has exactly the same level of power as the Radisson Hotel corporation when negotiating terms of employment…” I took this passage to mean that this is what libertarians say. And some do. And not without some good reason. “Power” is an abstract concept and hard to measure. For instance, I went to talk to my boss recently and asked to close the door; when we finished, she expressed great relief that I was not quitting as she originally feared! (heh-heh!) Would this apply to any and all employees? Of course not, but it helps demonstrate that it’s not simply a one-way street. In fact, it could easily be argued that the negotiating power between the two parties is equal within the applicable parameters, which is to mean at the level of market worth the employee has. But I don’t know, as much as a boss may dislike having an employee quit, it’s usually, if not always, a more important issue for the employee. So maybe that means the employer has more power. Hard to say, because it’s an abstract issue that we could go back and forth on forever and not get anywhere. So why bother? Fact is, even if some libertarians like to point out that your black/white view of employer/employee relations is not accurate (and as I say, they have a point, but it’s ultimately impossible to pin down), it’s all besides the point anyway. In other words, however much libertarians are likely to disagree with you on the power balance in this relationship, and however much they may like to express that disagreement, said disagreement is NOT at the heart of our position on employment relations. The real reason that is at the heart of our position is what I already stated in my post of 4:03. Everything else is tangential. And it is this “real reason,” as I’ve put it, that you seem to not be aware of when you lampooned our position as being based on the notion that all parties in all employment arrangements have perfectly equal power. And that’s why I pointed it out. I may not have addressed the primary point of your post, but then, that’s why I offered the disclaimer that we would never agree on the issue. I was giving that aspect of what you said a pass, and instead addressing the implication of your embellishment of your point.

  32. Great Orwell quote.

  33. fyodor,

    I would say that Left Libertarians, the distinct minority to which you roughly belong, believe that power relations between bosses and workers are equal in a “state of nature,” and view the deregulation of the economic sphere as a way to limit the ability of bosses to increase their power over their employees. Sort of like early, state-withering Marxists.

    Right Libertarians, who seem to be a large majority, believe that bosses are bosses because they’re just more boot-strap-lifting, intelligent, dynamic, creative – in other words, a natural elite. Their power over their employees is the “state of nature,” and they view deregulation of the economic sphere as a way to restore the rightful power of the meritocrats over the people who didn’t choose to rise into the entrepreneur class.

    The two are lumped together because they both attribute their desire for deregulation to opposition to the government pushing people around. However, I think this common area of interest is played up because it glosses over the vastly different ideas the two groups have about social equality and what a better society would look like. One side is an egalitarian philosophy, and its adherents are as likely to take exception to bosses pushing around their employees as to regulators pushing around bosses. The other is an elitist philosophy, and its adherents can usually be counted on to side with abusive employers in most matters.

    The O’Reilly falafel debate demonstrated this distinction quite well.

  34. The O’Reilly falafel debate

    I know those words, but they make no sense. Google isn’t much help, either.

    Can you clarify or provide a link for the clueless?

  35. Qbert

    I was referring to the sexual harrassment case against Bill O’Reilly. He confused the word “loofah” with “falafel” in a message he left on his target’s machine, and went into detail about wanting to rub her with a pita and lamb wrap in the shower.

    There were a couple of H&R threads at the time.

  36. Gotcha – thanks. The word “debate” threw me off. Now I’m pickin’ up what you’re puttin’ down.

  37. I would say that Left Libertarians, the distinct minority to which you roughly belong

    AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAUUUUUUUUUUUGHHHH!!! 🙂

    joe, you do a lot of characterizing of thoughts and ideas which I think rarely show up nearly enough to warrant your broad brush treatment. The best example of which is right at hand, i.e. that you’ve thoroughly ignored what I’ve specifically said on this very thread. You say that I favor deregulation in order to return to some ‘natural’ equality of power between bosses and employees (or at least you said that I belong to the group that believes that, which would seem to imply you think I believe it) when I’ve said nothing of the kind. Looked at one way, all power relationships seek and therefore attain a rough equilibrium. Looked at another way, which I think is probably a little more realistic, no relationship on Earth is equal, nor should we ever expect relationships to be, for roughly the same reason that no two snowflakes are the same (which might be a myth, but work with me here!). My reason for favoring what you call “deregulation” is described in my post of 4:03 and I shan’t repeat it. It has to do with the coercive nature of law, which thusly requires coersion to be invoked, and the fact that since employment is not a right, denying it is not coercive. Well, I guess I did repeat myself. Apparently it was necessary. For joe, anyway!!

  38. joe,

    My view on the O’Reilly issue is if the producer who sued has a case (based on her employment relationship with O’Reilly, as opposed to O’Reilly’s harrassing actions per se), it should be based purely on violation of contract and that the damages should be no greater than the inconvenience of quitting suddenly and having to find another job, and I didn’t see how this could possibly add up to 60 million dollars. I assume the 60 million dollar figure assumes that she was forced to endure this degrading behavior for three years because of her dependence on her employment to O’Reilly, which doesn’t wash with me. If you leave a job, you are essentially no worse off than if you had never taken the job in the first place, so it makes no sense to claim you have been put in a position of dependence! Now, if you moved across the country to take a job and your boss turns out to be an unconscionable rat requiring you to do things no reasonable person should expect of the job, it makes perfect sense to sue for your moving expenses, both there and back to where you moved from! But if you decide to KEEP THE JOB, you have no right to sue for the pain and suffering you experience as a result of that decision!

    Where this fits into your characterization of a ‘natural equilibrium’ between employer and employee I have no idea.

  39. Sorry for all the bold, I forgot to end it!

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