This week's meeting of the Law and Philosophy Workshop featured visiting professor, Leslie Green, presenting his paper, "On Being Tolerated." Green's focus is on the "sting" of toleration. He observes that, although one may prefer being tolerated to being persecuted, it does not generally feel good to be tolerated. In this paper, Green looks at why toleration is often seen as inadequate to its object and then suggests a companion principal, understanding, that he argues will do away with much of this inadequacy.
For the purpose of this paper, the desirability of toleration as a political, and social, principle is assumed, though Green does state some of the more common justifications for this principle. One important reason for toleration is that it is necessary in order to preserve peace. "Since some people will do almost anything to advance their views, a sustainable modus vivendi needs a principle of restraint." Another reason for toleration is that it is necessary for autonomy (a version of this view was advance by Joseph Raz in an earlier workshop). A third argument for toleration is based on Burkean concerns. Green quotes H.L.A. Hart: "To use coercion to maintain the moral status quo at any point in a society's history would be artificially to arrest the process which gives social institutions their value." The process being endurance over time.
In order to tolerate, a person must judge a given action, or state of affairs, adversely and restrain himself from attempts to prevent the action, or change the state of affairs. There can be no toleration without an adverse judgment that is seen by the tolerator as a reason for action. There are two important parts to this claim. One cannot tolerate behavior that one has not judged; indifference and toleration are separate concepts. Additionally, once a person has made an adverse judgment, he is not tolerating unless, for him, this judgment creates a reason for action. The example given is a judgment that a particular man's hair is too long. A person who makes such a judgment, but does not believe that this gives her a reason to hold him down and cut his hair, is not tolerating the long hair when she does not cut it. This is an interesting point worth exploring further. Green writes, "Not all adverse judgments warrant any sort of other-regarding response." Here, he is not arguing for toleration; he is describing circumstances that ideally do not call for it. The idea is that sometimes, instead of telling a person that he should be more tolerant, it would be more appropriate to tell him to mind his own business. There is room for debate on how different these two commands really are, but this is beyond the scope of current inquiry.
Green begins with the observation that being tolerated is uncomfortable. Why is this the case? One possibility is that the person being tolerated would prefer if everyone just agreed with him. He wants to get rid of the adverse judgment, not merely the action that responds to it. This, however, is dismissed by Green as unlikely most of the time. But more importantly, it is unreasonable most of the time. In the workshop, Green endorsed Rawls' view of the irreversible plurality of value. There are certain questions that do not have answers that can be universally agreed upon, such as "What is the true religion?" Therefore, we should not be overly concerned with objections to toleration that rely on the possibility of universal agreement on moral questions.
There are three ways that toleration can fail, in its scope, grounds and spirit. And these, for Green, are the sources of discomfort. Toleration can be deficient when its scope is incomplete. Green uses the example of the decriminalization of sodomy in the United States. Some have used this as an example that there is widespread tolerance of homosexuality in this country. This, however, is not particularly comforting to gays and lesbians in a legal regime that does not protect them from employment discrimination and does allow them to be prevented from adopting children. Another way that toleration can sting is if it is done for the wrong reasons, has the wrong grounds. There are many reasons that could be seen as wrong. One example would be a member of a salvationist religion who does not try to convert others because he wants them to suffer eternal damnation. It is not difficult to see why someone might not be entirely happy with being tolerated in that way. Another deficient ground for toleration, given by Green, can be found in Justice Thomas' dissent in Lawrence v. Texas. He wrote that he, personally, would not have voted for a criminal law proscribing sodomy because there are better ways to expend scarce law enforcement resources. The third potentially deficiency in toleration is in the spirit in which it is given. It will sting to be tolerated if it is clear that this is done grudgingly. Some have argued that toleration is a grudging virtue (it will always be done grudgingly), but Green disagrees. "One may tolerate happily and generously, out of a sense of respect or wonder at the rich diversity of human lives."
Before describing potential replacements for, and supplements to, toleration and their relative strengths and weaknesses, Green notes two other ways that toleration can sting that might not be addressed by a supplemental virtue. These are related to power and judgment. "There is . . . a connection between being tolerated and being subject to someone's power." We don't usually talk about people tolerating something, or someone, that they have no power to change, or at least that they believe they have no power to change. Green points out that we would call that "endurance" or "resignation." Though there is more to this argument in the paper, the main idea is that although most people prefer toleration to persecution, they would prefer a third situation where the person making adverse judgments is impotent to both. Furthermore, Green notes that it many cases the tolerated person would also prefer that the tolerator not judge her adversely. It may appear that the object of toleration, in this case, is asking too much, but we should be aware that sometimes the adverse judgments are so deeply and widely held that they impair the tolerated groups ability to reject them. "In extreme cases, it may seem that there is not even a recognized vocabulary in which they can dissent; the adverse judgments have become hegemonic."
Green's first candidate solution to the toleration problem is acceptance. Here, he means valuing difference. He quotes Audre Lorde, "Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic." However, if we celebrate difference because it sets the stage for creativity, we do not have to celebrate every difference. Acceptance requires more than a general love of difference, it means loving the specific differences with which one is faced. Green uses the example of parents coming to terms with the fact that their child is gay. This is a good example because it is a case where acceptance benefits the acceptor a great deal, but one where acceptance is not always possible. In order to move from toleration to acceptance, one must give up the adverse judgment, or at least the view that the adverse judgment itself is a reason for acting. This can be extremely difficult. For example, it can create powerful tension between the acceptor and those in his life who have not accepted. These costs may be justified, but that does not mean that they should be ignored. Green does not think that acceptance is feasible in most cases, particularly in the political arena where one would be asked to accept faceless strangers.
The next candidate is recognition. Some philosophers, including Hegel, have argued that our identities are formed through dialog with others. My identity depends on recognition by others and also on my recognition of them. "Recognition" is used here in a very specific sense; it means seeing others as they see themselves. Green gives an example that showcases the appeal of this approach. A person who tolerates religious dress out of respect for the general liberty of dress is missing the point in a serious way. Among other things, recognition requires knowledge of the significance of another's practices. It also requires a kind of phenomenological projection. In order for me to fully recognize another person, I have to know how she feels, not how I would feel in her situation. And it isn't enough just to try. Recognition requires accuracy. Green questions whether this is really possible, given most people's inability to imagine enjoying foods and sexual practices that they do not in fact enjoy.
This is how Green settles on understanding as the proper supplement to toleration. "Understanding" is defined as "the attempt to capture of recreate, to the extent that we can, the meanings that acts and symbols have for their agents." Acceptance and recognition are both probably impossible to achieve and they are both all-or-nothing concepts. Understanding works differently; it allows for mistakes, but it also allows for generalizations that can make toleration easier. Green uses the example of Thomas Nagel's writings on sadism and masochism. Nagel admits that he does not know exactly why sadists enjoy inflicting pain, but he does know that it is different for them than it would be for him; they see something else in it. Furthermore, he knows that the enjoyment is sexual and he guesses that it has to do "with the sense of one's body and the bodies of others, release of shame, disinhibition of physical control, transgression, and surrender." This is understanding. Instead of focusing on the pain, the part of sadism that a non-sadist is least likely to be able to understand, he focuses on the ways in which sadism is like many other expression of sexuality. Looking at it this way is likely to make toleration easier. It also is likely to make toleration sting less for those being tolerated. The effort is appreciated.
Green closes the essay with a discussion of H.L.A. Hart's two arguments against laws prohibiting homosexual conduct. The first was that homosexuality was not harmful. The second, and the one of central importance to Green, is that repression of homosexuality is harmful. Hart saw that homosexual desire was not fundamentally different from heterosexual desire and went on to argue that "the suppression of sexual impulses generally is, something which affects the development or balance of the individual's emotional life, happiness, and personality." This, for Green, is an example of understanding in action. It is well recognized that Hart believed that the internal point of view was necessary for interpretation; reductivist theories of law fail because they do not capture how subjects view law. Green argues further that Hart believed that the internal point of view is also necessary for moral reasoning and that this is what is involved in understanding.
Next time: 5/4/09: Joshua Cohen