[ Pobierz całość w formacie PDF ]
in such debates will only take us so far in finding solutions which realise liberal
principles of toleration: oppositions may still exist once opposed parties have
satisfied the demands of reasonableness, and the state must mediate these oppo-
sitions. In order to proceed we need a way of deciding which parties claims to
have been harmed by or to be under threat of harm from4 those to whom
they are opposed provide legitimate grounds for state action in the form of legal
protection from harm for the party in question.
One way in which to approach this challenge is to construct an account of
harm whereby the claims of one or more parties in reasonable opposition to
have been harmed by the other can be dismissed. To return to Waldron s
example, we might claim either that the reasonable Muslim s claims to be
harmed by the pornographer are mistaken (for example, by claiming that the
Muslim s sensitivities are too heightened), or vice versa (by claiming, for
example, that the production of pornography cannot be a part of any mature
conception of the good).
POLITICAL HARM: THE LIBERAL PARADIGM 83
This approach has the virtue of generating quick, clean decisions with
respect to problems of toleration characterised by reasonable oppositions, but
this is more or less the limit of its attractions. If liberal toleration requires that
the state peremptorily dismiss as mistaken the sincere claims of various of its
genuinely reasonable members to have been harmed by others then the vision
of the state as silent on the big moral, religious, and philosophical questions
which inform its members lives and to that extent, the vision of the state as
the servant of its members beloved of liberals through the ages is an illusion.
What liberals with this vision need is an account of harm which enables the
legal adjudication of reasonable oppositions, and which nevertheless acknowl-
edges as meaningful the claims to have been harmed made by reasonable people
who do not achieve the outcome they desire through such adjudication. In
other words, if the account of political harm justifies overruling the Muslim in
his dispute with the pornographer by, say, generating laws protecting freedom of
expression which cover the pornographer s activities perhaps by ranking
protection from the harm suffered by the Muslim as subordinate to the protec-
tion of freedom of expression in the hierarchy of political priorities then this
account must also register as meaningful, and not mistaken, the Muslim s claims
to have been harmed by the pornographer, even though (on this account) these
claims are not sufficient to ground legislation protecting people from that type
of harm. As John Horton puts it,
[I]t is important to acknowledge the real possibility, even when we reject
for what we take to be good reasons the public or institutional accommoda-
tion of a particular claim by a cultural group, that their motivating sense of
grievance may still have legitimacy. That for whatever reasons we
genuinely believe that we cannot incorporate a particular claim for differ-
ential treatment, or cannot do so adequately, does not necessarily mean
that we must reject the validity of the complaint.5
The best attempt at such an account is given by Joel Feinberg, and is founded
on a distinction he draws between (political) harm and offence.6 Putting aside
for the moment the question of how best to understand political harm, Feinberg
offers a taxonomy of offence consisting of six categories, and gives graphic illus-
trative examples for each category. In considering the examples the reader is
invited to imagine herself as a passenger on a crowded bus trying to get to an
important appointment a job interview, say for which she is late; in other
words, she cannot escape the activity which causes the offence without great
cost to herself.7
1 Affronts to the senses: for example, caused by pungent and unpleasant smells
and unbearable noises.
2 Disgust and revulsion: for example, caused by witnessing other passengers
eating live insects, fish heads, and pickled sex organs of lamb, veal, and
pork, smothered in garlic and onions , and then vomiting their meal up
84 TOLERATION
before consuming their own and one another s vomit along with the
remains of the food.8
3 Shock to moral, religious, or patriotic sensibilities: for example, caused by
violence towards corpses, defacement of the flag, or mockery of religious
icons.
4 Shame, embarrassment, and anxiety: for example, caused by public nudity,
explicit public reference to sex acts, and publicly performed sex acts
(including those involving animals).
5 Annoyance, boredom, and frustration: for example, caused by the inane
chatter of others, or by being trapped by a persistent bore.
6 Fear, resentment, humiliation, and anger: for example, caused by racist or
sexist images or speech, threatening behaviour or appearance (a youth
appears wearing a swastika on an armband, or pulls out a fake rubber knife
and stabs himself and others repeatedly to peals of maniacal laughter ).9
All of us have experienced situations in which the behaviour of others has
offended us in one of the ways Feinberg identifies (although, thankfully, few of
us have been subject to the more extreme forms of behaviour he identifies
which can cause each type of offence). By considering the following two ques-
tions we will see how Feinberg s account of offence can be used to partially flesh
out the larger account of harm required by the reasonableness defence of tolera-
tion: (1) do any of the categories of offence identified by Feinberg capture the
experience of Waldron s reasonable Muslim?; and (2) how, if at all, ought the
law to address this and the other categories of offence?
The experience of Muslims in dispute with pornographers and persons
involved in the examples of other reasonable oppositions given above falls
into the category of shock to moral, religious, or patriotic sensibilities. This sort
of offence strikes us as qualitatively different from the offences of the other five
categories, and as somehow more significant. This difference is registered by
Feinberg s classification of the offences in this category as profound offences.
Other examples of causes of profound offence he gives are voyeurism, the delib-
erate attempt to frighten and mock Jewish survivors of Nazi death camps by
parading through a town heavily populated by them,10 deviant and execrated
religious and moral practices (such as eating pork or slaughtering cows), the
mistreatment of venerated symbols, and abortion and the mistreatment of
corpses.11
Feinberg distinguishes profound offence from other forms of offence as
follows:
1 profound offences are non-trivial;
2 the experience of them need not coincide with perception of behaviour
that causes the offence (that is, bare knowledge of the behaviour may be
enough to cause offence);
3 they occur at the level of a person s higher-order (moral, religious, or patri-
otic) sensibilities rather than her senses;
POLITICAL HARM: THE LIBERAL PARADIGM 85
4 they offend because they are believed to be wrong (rather than being
believed to be wrong because they offend); and
5 they are impersonal (the offended person objects to what is being done per
se, not just what is being done to her).
The complaint of the reasonable Muslim to be harmed by the pornographer s
activities is a clear case of profound offence:
1 the production of pornography in her society is not a trivial matter to the
Muslim;
2 the Muslim does not consume pornography, and it is the bare knowledge
that others do that offends her;
3 the Muslim s moral and religious sensibilities are offended by the produc-
tion and consumption of pornography; [ Pobierz całość w formacie PDF ]
zanotowane.pl doc.pisz.pl pdf.pisz.pl exclamation.htw.pl
in such debates will only take us so far in finding solutions which realise liberal
principles of toleration: oppositions may still exist once opposed parties have
satisfied the demands of reasonableness, and the state must mediate these oppo-
sitions. In order to proceed we need a way of deciding which parties claims to
have been harmed by or to be under threat of harm from4 those to whom
they are opposed provide legitimate grounds for state action in the form of legal
protection from harm for the party in question.
One way in which to approach this challenge is to construct an account of
harm whereby the claims of one or more parties in reasonable opposition to
have been harmed by the other can be dismissed. To return to Waldron s
example, we might claim either that the reasonable Muslim s claims to be
harmed by the pornographer are mistaken (for example, by claiming that the
Muslim s sensitivities are too heightened), or vice versa (by claiming, for
example, that the production of pornography cannot be a part of any mature
conception of the good).
POLITICAL HARM: THE LIBERAL PARADIGM 83
This approach has the virtue of generating quick, clean decisions with
respect to problems of toleration characterised by reasonable oppositions, but
this is more or less the limit of its attractions. If liberal toleration requires that
the state peremptorily dismiss as mistaken the sincere claims of various of its
genuinely reasonable members to have been harmed by others then the vision
of the state as silent on the big moral, religious, and philosophical questions
which inform its members lives and to that extent, the vision of the state as
the servant of its members beloved of liberals through the ages is an illusion.
What liberals with this vision need is an account of harm which enables the
legal adjudication of reasonable oppositions, and which nevertheless acknowl-
edges as meaningful the claims to have been harmed made by reasonable people
who do not achieve the outcome they desire through such adjudication. In
other words, if the account of political harm justifies overruling the Muslim in
his dispute with the pornographer by, say, generating laws protecting freedom of
expression which cover the pornographer s activities perhaps by ranking
protection from the harm suffered by the Muslim as subordinate to the protec-
tion of freedom of expression in the hierarchy of political priorities then this
account must also register as meaningful, and not mistaken, the Muslim s claims
to have been harmed by the pornographer, even though (on this account) these
claims are not sufficient to ground legislation protecting people from that type
of harm. As John Horton puts it,
[I]t is important to acknowledge the real possibility, even when we reject
for what we take to be good reasons the public or institutional accommoda-
tion of a particular claim by a cultural group, that their motivating sense of
grievance may still have legitimacy. That for whatever reasons we
genuinely believe that we cannot incorporate a particular claim for differ-
ential treatment, or cannot do so adequately, does not necessarily mean
that we must reject the validity of the complaint.5
The best attempt at such an account is given by Joel Feinberg, and is founded
on a distinction he draws between (political) harm and offence.6 Putting aside
for the moment the question of how best to understand political harm, Feinberg
offers a taxonomy of offence consisting of six categories, and gives graphic illus-
trative examples for each category. In considering the examples the reader is
invited to imagine herself as a passenger on a crowded bus trying to get to an
important appointment a job interview, say for which she is late; in other
words, she cannot escape the activity which causes the offence without great
cost to herself.7
1 Affronts to the senses: for example, caused by pungent and unpleasant smells
and unbearable noises.
2 Disgust and revulsion: for example, caused by witnessing other passengers
eating live insects, fish heads, and pickled sex organs of lamb, veal, and
pork, smothered in garlic and onions , and then vomiting their meal up
84 TOLERATION
before consuming their own and one another s vomit along with the
remains of the food.8
3 Shock to moral, religious, or patriotic sensibilities: for example, caused by
violence towards corpses, defacement of the flag, or mockery of religious
icons.
4 Shame, embarrassment, and anxiety: for example, caused by public nudity,
explicit public reference to sex acts, and publicly performed sex acts
(including those involving animals).
5 Annoyance, boredom, and frustration: for example, caused by the inane
chatter of others, or by being trapped by a persistent bore.
6 Fear, resentment, humiliation, and anger: for example, caused by racist or
sexist images or speech, threatening behaviour or appearance (a youth
appears wearing a swastika on an armband, or pulls out a fake rubber knife
and stabs himself and others repeatedly to peals of maniacal laughter ).9
All of us have experienced situations in which the behaviour of others has
offended us in one of the ways Feinberg identifies (although, thankfully, few of
us have been subject to the more extreme forms of behaviour he identifies
which can cause each type of offence). By considering the following two ques-
tions we will see how Feinberg s account of offence can be used to partially flesh
out the larger account of harm required by the reasonableness defence of tolera-
tion: (1) do any of the categories of offence identified by Feinberg capture the
experience of Waldron s reasonable Muslim?; and (2) how, if at all, ought the
law to address this and the other categories of offence?
The experience of Muslims in dispute with pornographers and persons
involved in the examples of other reasonable oppositions given above falls
into the category of shock to moral, religious, or patriotic sensibilities. This sort
of offence strikes us as qualitatively different from the offences of the other five
categories, and as somehow more significant. This difference is registered by
Feinberg s classification of the offences in this category as profound offences.
Other examples of causes of profound offence he gives are voyeurism, the delib-
erate attempt to frighten and mock Jewish survivors of Nazi death camps by
parading through a town heavily populated by them,10 deviant and execrated
religious and moral practices (such as eating pork or slaughtering cows), the
mistreatment of venerated symbols, and abortion and the mistreatment of
corpses.11
Feinberg distinguishes profound offence from other forms of offence as
follows:
1 profound offences are non-trivial;
2 the experience of them need not coincide with perception of behaviour
that causes the offence (that is, bare knowledge of the behaviour may be
enough to cause offence);
3 they occur at the level of a person s higher-order (moral, religious, or patri-
otic) sensibilities rather than her senses;
POLITICAL HARM: THE LIBERAL PARADIGM 85
4 they offend because they are believed to be wrong (rather than being
believed to be wrong because they offend); and
5 they are impersonal (the offended person objects to what is being done per
se, not just what is being done to her).
The complaint of the reasonable Muslim to be harmed by the pornographer s
activities is a clear case of profound offence:
1 the production of pornography in her society is not a trivial matter to the
Muslim;
2 the Muslim does not consume pornography, and it is the bare knowledge
that others do that offends her;
3 the Muslim s moral and religious sensibilities are offended by the produc-
tion and consumption of pornography; [ Pobierz całość w formacie PDF ]