Civil Disagreement: Personal Integrity in a Pluralistic Society

Chapter Four: Laws and Dissenters

107 CHAPTER FOUR Laws and Dissenters Much of what has been discussed so far applies primarily to disagreements and conflicts between individuals in their personal interactions. I have offered a conceptual framework that I hope helps us think through appropriate ways to respond when we have differences on issues that are important to us. For example, we can recognize positions that we can respect, even if we disagree, and then we can raise the question of toleration or cooperation as separate issues. We can distinguish toleration from any number of related and sometimes contradictory concepts. In discussing intolerance, I have noted that we should distinguish direct intolerance, as when a parent personally prevents a child from smoking, and indirect intolerance, as when a citizen supports laws against smoking. In the latter case, the coercion is not directly applied by citizens ; rather, they endorse the use of coercion by those who enforce the laws. For example, the issue of which euthanasia practices are tolerable or intolerable often involves political decisions about which laws an individual should favor, and so they are decisions about indirect intolerance. The toleration practiced by persons in their daily interactions is sometimes called social toleration, and that practiced by institutions such as governments is sometimes called political toleration.1 In a democracy, political intolerance involves decisions by a majority of citizens to be indirectly intolerant of particular actions and practices. This chapter focuses on the issues involved in such decisions. One of the most difficult problems a pluralistic society faces is that of legislating on value-laden issues; these often are hotly controversial issues about which the differences are wide and deep and the passions run high. This is the first of two main issues we will discuss in this chapter. The second one derives from the fact that in a pluralistic society we will inevitably find groups whose sense of identity leads them to reject consensus values, including the value or interpretations that most of us give to individual freedom and equality, and who ask to be left alone to live and raise their children in ways that force us to think hard about toleration of differences. Can our discussion of civil disagreement provide guidelines for thinking through these tough issues? 108 Chapter Four Civil Disagreement about Legislating Laws At least four factors converge to heighten both the difficulty and the importance of disagreement within a pluralistic nation-state such as the United States. First, the legal power of a state is generally immense, highly coercive (traditionally and evocatively called “the sword power of the state”), and, within its sphere, the final court of appeal. Second, rarely is citizenship a completely voluntary agreement, since relatively few people have the opportunity to change citizenship and, even when they do, the choices are usually quite limited; citizens are typically born into a state and generally they avoid its legal authority only at death. Third, a pluralistic state will include many conflicting decisions about what the laws should be and how to enforce them, decisions that can greatly affect the quality of citizens’ lives. Fourth, included within the diversity are conflicting religious and moral convictions that are central to persons’ identities and to the commitments that give their lives meaning, structure, and fulfillment. These four factors have motivated much of the debate over what is meant by liberalism and by democracy, as well as the debate over how they are related to each other and to pluralism. A brief summary of these debates will set the stage for examining the disagreements about legislating on controversial issues. Liberalisms: Classical, Comprehensive, and Political What is often called classical liberalism is the insistence on individuals’ rights, usually in opposition to the hierarchies that presided over most of human history—the monarchies, dictatorships, theocracies, and aristocracies that used entrenched power structures or selected traditional authorities to justify the rule of one or a few over the many. The heavy thinkers of classical liberalism include the 17th-century English philosopher John Locke, who emphasized individual property rights; the 18th-century German philosopher Immanuel Kant, who emphasized respect for individuals’ autonomy; and the 19th-century English philosopher John Stuart Mill, who emphasized individual freedoms. In today’s political debates, important elements of classical liberalism are embraced both by “conservatives” (often called “liberals” in Canada, Europe, and Australia and sometimes called “libertarians” in the United States), as well as by the “L word” liberals, those associated with leftist policies. We find this overlap in political outlooks...