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Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate—what Tuckness terms the "legislative point of view"—has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke ...
Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate—what Tuckness terms the "legislative point of view"—has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke made explicit in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.
Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory.
Toleration is a defining aspect of liberal thought. Although it is quite difficult to give a definition of what set of characteristics is necessary and sufficient to describe a view as liberal, one can say that any view that completely rejects the idea of toleration is not liberal. A doctrine of toleration holds that there are times when it is morally right to refrain from attempting to put a stop to some action or state of affairs that one thinks is morally wrong. It holds that there are moral reasons not to do so even when discouraging the action is feasible. Liberalism thus requires a certain kind of "bracketing" where individuals decide not to act politically on certain principles and values that they believe to be true.
It is precisely this core aspect of liberal thought that has drawn criticism because it is clear that in many cases "bracketing" is the wrong response. Michael Sandel, for example, argues that we often cannot bracket controversial moral beliefs without begging the question against those who disagree with us. Sandel gives two stark examples: debates over slavery and abortion. Before the United States Civil War, Stephen Douglas claimed that we should bracket the question of whether slavery is right or wrong and, as a nation, be neutral on the question. Each state should decide for itself and tolerate other states that come to different conclusions. Lincoln replied that it was reasonable to bracket the question of slavery's morality only if one had already decided it was not abominable. In the case of abortion, prochoice advocates claim the government should tolerate abortion, allowing each person to choose for herself just as the government allows each person to choose what religion she will follow. "But if the Catholic church is right about the moral status of the fetus, if abortion is morally tantamount to murder, then it is not clear why the political values of toleration and women's equality, important though they are, should prevail." Sandel's point is not to argue against abortion but to suggest that we cannot give a coherent answer to a difficult question like this without invoking controversial beliefs.
The problem Sandel identifies is not a new one. In fact, liberalism from its earliest formulations has drawn the criticism that it begs the crucial questions. The problem lies in the very idea of toleration itself, as toleration seems paradoxical. To use Sandel's examples, if one really believes abortion or slavery is wrong, why would one think it morally right for the government to tolerate such practices? We can see this more clearly if we state the definition of toleration more precisely. The most important part of the definition is that, strictly speaking, the question of toleration arises only when one confronts something of which one disapproves. Thus, strictly speaking, a person who does not think there is anything wrong with homosexuality does not tolerate it. Such a person is either indifferent to it or approves of it. The latter case does not present a paradox. If one is indifferent to or approves of homosexuality, then it is relatively obvious why one is under no obligation to try to put a stop to it. But for someone who truly does think it is wrong, the paradox seems quite real. It is a paradox because we not only agree that the action is wrong, we also agree that tolerating it is right. Were tolerating the action wrong, the paradox would again disappear. The paradox is heightened when we note that genuine cases of toleration arise when we actually have the power to put a stop to, or at least discourage, the action or state of affairs in question. Toleration is thus very different from acquiescence. Many people accept a state of affairs simply because they feel powerless to do anything about it. Again, in such a situation, there is no deep paradox. If ought implies can, cannot implies a permission in most cases to refrain from trying. Genuine cases of toleration arise precisely when there is some action you might take that would be instrumentally effective in combating what you think is wrong.
One common solution to this apparent paradox is to claim that toleration rests on a kind of skepticism. Bernard Williams, noting the above paradox, sees toleration as a skeptical virtue because a tentativeness regarding our own beliefs will make us less likely to oppress those who disagree with us. Indeed, this fits with a particular view of toleration in which the battle is between dogmatists who attempt to impose their views on others and more tolerant and reflective sorts who are less sure that their own views are right. Interestingly, the very justification Williams gives is precisely the one early liberals tried hard to avoid. Locke tried hard to rebut the accusation that he was a religious skeptic. His critics claimed that someone who sincerely believed his own religion was true and the only way to heaven would not be so callous toward others as to propose toleration but would instead use every means possible to bring them to the true religion. Locke insisted that although he believed that humans are fallible, even on matters of religion, this did not make him a skeptic because he did not believe all positions were equally reasonable.
On this point Locke was correct. Leaving aside the historical question of whether Locke was a skeptic (I believe he was not), there is an important conceptual difference between a belief in human fallibility and skepticism. Human fallibility simply means that as a matter of principle no human being is exempt from the possibility of being in error. Skepticism, on the other hand, is the more radical claim that general statements about right and wrong in such cases are impossible or nonsensical. Neither position, by itself, constitutes an argument for toleration. The belief in fallibility does not because it does not provide any particular person with a decisive reason not to act on whatever principle she thinks most likely to be right. For example, it does not follow that because I might be incorrect in believing that forced child labor is wrong that I should not try to put a stop to it. After all, if I am right and do not act, evil consequences may follow. If I think that I am more likely to be right than wrong, I have a prima facie reason to act. Human fallibility may be coupled with other substantive moral principles as part of a larger argument for toleration, but it is not an argument by itself.
Skepticism also fails, by itself, to provide a persuasive argument for toleration. But unlike human fallibility, skepticism undermines the other moral principles it might be combined with as part of a larger argument for toleration. Since skepticism is so often associated with theories of toleration, I should make it clear why I reject the skeptical alternative by comparing it to two other ways that a theory of toleration might relate to foundational moral beliefs. A foundational belief is a religious and/or philosophical position on which the justification for our actions ultimately rests. It functions as a moral first premise from which we may derive other moral premises. Some foundational theories claim that there is a uniquely correct comprehensive view that requires toleration. So, for example, one might think that Christianity is the one true religion and that it commands toleration, or one might think that Kantianism or utilitarianism is the one true philosophy and that the one true philosophy commands toleration. "Political liberalism," associated with John Rawls, is a second approach. Political liberalism is agnostic about whether there are foundations for toleration and instead asserts a doctrine of toleration as a freestanding political principle that may be endorsed from a variety of different foundational positions. Thus, to use Rawls's example, there might be a political principle of toleration that Kantians, utilitarians, and Christians could affirm even though they would disagree about what considerations ground the principle. A more detailed discussion of this approach must wait until chapter 4.
Skepticism represents a different approach. Skeptical positions deny that any foundations exist and claim this as a reason for toleration. Historically, many people have tried to claim skepticism as a ground for toleration. After all, so the argument goes, a person who is unsure whether his beliefs are true will be less likely to harm those who disagree with him. The often noted problem with this argument is that one could just as easily draw the conclusion that since there are no right answers to moral questions, one is free to do whatever one wants, including persecute others. Richard Tuck has pointed out that there have been many instances in history where the skeptics were supporters of authoritarianism rather than liberal toleration. In sum, the true skeptic has no grounds upon which to criticize the persecutor since the persecutor's worldview is just as valid. The skeptic is not claiming that all views are equally right since that would imply there was some common scale on which they could all be measured. The claim is instead that the different views are incommensurable, and the fact that two goods are incommensurable does justify treating them as if they were equal. This approach is problematic from a practical standpoint because so many people are not skeptics. While it might be possible to formulate a theory that claims that all people ought to be skeptics and that skeptics need not be constrained in their political actions by the fact that there are many nonskeptics around, this is not a move open to many current liberal writers, certainly not Rawls. To require skepticism, in Rawls's view, would be to require people to accept a metaphysical principle about which there is reasonable disagreement. The clinching point for our present purposes is that skepticism gives us no guidance when the question is "what laws should we adopt." In the same way that rejecting free will in favor of determinism provides no help in deciding which of two actions to perform, so relativism provides no help when we must decide which of two moral outlooks to endorse.
The first and second ways, by contrast, do affirm substantive political principles and therefore can be of use in practical deliberation about toleration. I draw upon the approach of political liberalism in that I will put forward political principles that persons from a variety of religious and philosophical traditions could adopt. When I examine Locke's arguments, I will try to find versions of them that could be endorsed both by those who share Locke's Christian beliefs and by those who reject them. Still, it is important to note that the success of my argument does not in the final analysis depend on the success of political liberalism. Although every theory of political liberalism will include a theory of toleration, the converse is not true. A theory of toleration could be based on a particular comprehensive doctrine that is true rather than posited as a freestanding doctrine, as political liberalism requires. Thus I leave open the possibility that the position I develop below might need to be grounded in a particular comprehensive doctrine, although I do not do so here. Persons are of course politically free to believe that their worldview provides the best justification for the political principles I will develop below.
The above considerations show why it would be desirable to find moral reasons for toleration that do not rest on skepticism. Actually providing such reasons is the more difficult task. In the remainder of this chapter I claim that, under certain conditions, the paradox of toleration is only an apparent paradox. The paradox depends in large part on framing the problem of toleration in very broad terms. Historically, however, theories of toleration were developed with more specific problems in mind and framed in much narrower terms. Specifically, early toleration theorists like Locke were particularly concerned with political toleration and the use of force.
There is often more than one way to try to stop an action. For example, if person X has the power to restrain someone through physical force but refrains, it is an example of toleration; X has rejected one possible method for trying to put a stop to the action. But persuasion is also a way in which an individual tries to alter the beliefs or actions of others. One could thus distinguish between civil and political toleration. The former would articulate moral principles that should govern noncoercive interactions between persons; the latter, coercive actions, either between persons or between persons and the state. Is a religious fundamentalist who tries to persuade others to join her religion, while renouncing the use of physical force and intimidation, tolerant? As a matter of political tolerance, the answer is yes. Given the power differences that often exist between private citizens, acts of persuasion can certainly generate interesting moral questions. But the focal case of toleration, especially a political theory of toleration, must be political toleration. Positive laws are generally characterized by the presence of physical sanctions for noncompliance. Because positive laws are physically coercive, political toleration concerns the relationship between moral principles and the use of force.
If we focus on political toleration and the use of coercion and threats of coercion, toleration becomes, at least potentially, less paradoxical. If the use of a particular means carries moral weight, then there is a non-skeptical reason for toleration. If a person's moral beliefs contain insights about means as well as ends, then political toleration is possible without paradox or skepticism. Much of the literature on "dirty hands," for example, rests on the moral intuition that some means, such as violence, are problematic simply as means. The claim that violence is a problematic means is not uncontroversial. An act-utilitarian would, for example, say that the use of violence is wrong only insofar as it produces particular undesirable outcomes. The very logic of consequentialism requires that all means, taken simply as means, are morally equivalent since only consequences count. But although the claim that violence is suspect is not uncontroversial, it is nonetheless widely held. Persons have moral beliefs about how one ought to act, and this includes beliefs about when to use force. One's belief that an action is wrong creates a reason to try to stop it, while one's beliefs about the appropriate uses of force restrict how one goes about stopping it. When persons conceived of religious toleration in the seventeenth century, it was as a doctrine of political, not civil, tolerance. Many of the paradoxes fall away when it is seen in this light.
Although the belief that violence is a problematic means is widely shared, it is not enough by itself. Although it points to a way of thinking about the problem of toleration such that it is not logically incoherent, it does not dispense with the need actually to develop arguments that specify when refraining from the use of force is the correct response. Pacifism, like act-utilitarianism, is a minority view. Most people believe that there are some times when states should use force to prevent morally wrong actions. Most, for example, would support the use of police power to stop murder or rape. We need a more specific, and more controversial, argument in order to set the appropriate line between things we should tolerate and things we should not.
Normally when theorists reach this point in the argument they appeal to particular substantive values, such as autonomy or equal concern and respect, both to justify toleration and to define its scope. In this book I take a more indirect approach. Rather than fully specifying a theory of toleration, I instead want to note a pervasive feature of debates about toleration and propose a moral perspective from which we can assess competing moral arguments. The pervasive feature in question is the fact that moral principles are almost always contested both as to their facial validity and as to how they should be interpreted.
Excerpted from Locke and the Legislative Point of View by ALEX TUCKNESS Copyright © 2002 by Princeton University Press. Excerpted by permission.
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ABBREVIATED REFERENCES xiii
The Legislative Point of View and the Ends of Government 15
Contested Laws and Principles 17
Contested Principles and the Legislative Point of View 25
The Analogy between Laws and Moral Principles 31
Contested Principles and the Legislative Point of View 36
Rule-Utilitarianism and Contested Principles 36
Locke, Proast, and Contested Principles 39
The Secular Analogue of the Lockean Argument 46
Two Illustrations 51
Legislative Consent and the Public Good 57
Problems with Contractual Consent 66
Locke's Legislative Consent and the Public Good 74
Beyond Neutrality and Perfectionism 85
Two Liberal Approaches 85
Rawls and Reasonable Agreement 88
Raz and Human Well-Being 101
Beyond Neutrality and Perfectionism 110
The Legislative Point of View and Constitutional Roles 115
Institutional Roles and the Legislative Point of View 117
Locke on Legislative and Executive Powers 121
Locke and the Missing Judicial Power 127
Judges as Legislators: Functions versus Institutions 132
Implications for Contested Roles 135
Contested Roles, Interpretation, and the Framer's Point of View 137
Contested Jurisdiction and the "Framer's Point of View" 140
Contested Constitutional Jurisdiction in the United States 143
Dworkin and the Legislative Point of View 147
Originalism and the Nature of Law and Legislation 159
Boerne v. Flores 166
Contested Roles and the State of Nature 172
Textual Support for the Legislative Point of View 179
Locke's Theory of Consent and the Ends of Government 181
COURT CASES CITED 199