Thursday, 1 May 2008

The Awesome and Dangerous Ethical Rationalism of Olsen and Toddington

On behalf of myself and Henrik Olsen can I say that both our gratitude and our apologies are due to JoeTanega (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008).

We are grateful not only for Joe’s vigorous contribution to the Olsen and Toddington Seminar ("Why Multiculturalists Should Seek to Abolish the Right to Freedom of Religion" Westminster, April 23rd 2008) but also for the unexpected joy of reading, in portly and greying middle age, that there is someone out there who regards us as “…awesome and dangerous…” Even the comparatively youthful Henrik Olsen appeared to be buoyed by the prospect of this formidable notoriety. Similarly, if rather more sedately, we received in Joe’s blog more compliments than Rationalists and Legal Idealists can expect in a career of review. We’ll take this any time: “Toddington and Olsen have a non-mystical, very rationalistic idea of what constitutes religion which is frankly...egalitarian…” (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008 para 1).

Apologies are in order because, in the (literal and figurative) heat and noise of the seminar in question, it appears that we were not sufficiently clear about our views and about the identities of our theoretical antecedents. We can only hold ourselves responsible for these confusions and make an attempt here to dispel them. It shouldn’t take long; 90% of Joe’s ‘riposte’ has little or nothing to do with Olsen and Toddington; like most blogs, including this one, and understandably these days when reading, writing and thinking properly is such a task, it’s all about the blogger.

JoeTanega wants to explain at length first, why he is not an egalitarian, and secondly, he wants to argue for a philosophy of ‘darkness’ that holds that the deepest virtue and the most genuine experience of religious belief is to be found in the secrets of the heart. Of the first contention, the objection to Egalitarianism, it would be convenient to say that this is none of our business, but as proponents of Natural and reciprocal rights and duties, we at least have to point out that this position is not only irrational, but, on a more personal note, that it is rather disappointing to be apprised of it. But fortunately (for Joetanega and for other rights bearers), some comfort can be taken from the fact that Joe has no idea what Egalitarianism is. It is, as we all know, the thesis that agents have equal rights; but Joetanega confuses it with the absurd and, as far as we are aware, universally unsubscribed suggestions that:

…it is an ideal born out of the quasi-statistical invention of sameness of equi-probable events…the misbegotten export of a very useful mathematical concept… randomness where each and every thing is the same… purchased for the realm of social control. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-4)
or that,

Egalitarianism is one of those projected… symmetry ideas that says, "Forget all the differences we see in the world, and let us imagine a world where everyone has the same of something or where everyone should be treated the same no matter what the special conditions”. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-8).

On the contrary, the liberating and uplifting thing about having a systematic understanding of what rights are, where they come from, and why they are equal, is that, in the infinite flux of context in a world where we experience vast differences of attributes and capacities between persons, one is able to entertain the hope that where such differences militate against the civil ideals of equal and mutual respect, rights might be interpreted, applied, weighed and balanced against each other in the rational attempt to produce artificial equality from natural morality. Legal Idealists, like us, call this process 'law'. It's often very useful; equal rights to freedom and well-being justify the forcible prevention of, say, large violent persons beating up small, timid persons.

As for the theory of ‘darkness’ - Joetanega’s second major digression - it was an enthralling read, and it might well be true, but it has no bearing whatsoever on our suggestion (in Architectures of Justice, Chapter 6,[1] and as advanced in the seminar in question) that, in a society that understands egalitarianism and pluralism rationally – and proprietary brands of ‘Multiculturalism’ do not understand equality and pluralism rationally[2] - hierarchical distinctions and thus opportunities for special pleading between ‘religious’ belief and other ‘less important' ‘partial' philosophies of life should not be perpetuated. All this aside, the entire substance of Joetanega’s blog which requires remedial attention from us is as follows:

[Toddington and Olsen argue ] for an ethical epistemology based on J.S.Mill's premise of freedom. Toddington's version of Mill's freedom is that it is actually "the responsibility of egalitarianism to maximize the scope of personal efficacy." (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 1 lines 2-5)

Neither Henrik nor I have ever had a good word to say about J.S. Mill. What we did say was that we based our epistemology of rights firmly on our modified understanding of the work of Alan Gewirth[3] and that his argument to the Principle of Generic Consistency (PGC) could and should be assimilated to Lon L. Fuller’s conception of ‘Affirmative Freedom’ elaborated in his (Fuller’s) famous essay “Means and Ends” and more clearly in Kenneth Winston's recent discovery and reconstruction of Fuller’s 1958 Edward Douglas White Lectures now published as “The Case Against Freedom”.[4] Gewirth’s epistemology of rights, we suggested, offers foundational ethical support for Fuller’s imaginative, but insufficiently grounded speculations on institutional design that we find in his writings on Eunomics. We said in the seminar (or intended to convey) that Fuller's key insight is that a socially engaged conception of (’affirmative’) freedom (entirely unlike J.S Mills’) leads us to acknowledge that it is the responsibility of legitimate (eunomic) institutional design to aim to maximise the scope of effective agency. So JoeTanega was almost right; but it was very noisy in there.

If one wants to be entirely clear on the points made, we explain them very fully in Chapter 2, 5 and 6 of Architectures of Justice.[5] J.S. Mill does get a mention here, (and maybe he did in the seminar), but only to note that Mill’s theory of (negative) freedom and the historically inexplicable reception and continuing influence of the vacuous tautology that is peddled as the ‘Harm Principle’ were the focus of a sustained and devastating critique[6] that forms the most core concepts of Fuller's (and our contribution to Fuller's) Philosophy of Eunomics.

Check out the book and you will see why Joetangea can cease to live in awe of our dangerous ideas: Not only do we cherish the secrets of the heart, but we also make an egalitarian stand for those who espouse secular and partial philosophies of life as opposed to religious or ‘total’ philosophies of life, and who, in terms of rights protections, are currently regarded as the legal inferiors of religious devotees. This latter anomaly arises because, in straightforward technical or black-letter terms, unless one accepts that the current human rights legislation relating to freedom of expression, association and assembly (let’s take the ECHR articles 10,11, 14 and also note the overlaps with 8 and 6 and with Article 2 of Protocol No.1 of the convention) is capable of subsuming -doing the same job as - the right to freedom of religion (Article 9), then one must make a special case for retaining and prioritising the type of freedom protected by Article 9. This defence generally takes the form of claiming that religious belief is more important than other forms of belief. There are large numbers of people anxious to take this irrational standpoint, but none who seem capable of substantiating it. All religious arguments for this position are, obviously, question-begging – that doesn’t mean false, it just means circular, and thus, logically speaking, uncompelling. The non-religious arguments we examined in Chapter 6 of Architectures – and those advanced by seminar participants - were and are, in our view, similarly unsatisfactory.
Joetanega’s 'darkness’ we might add, is not so much protected by Articles 8, 10,11 etc., it doesn’t even hit the regulatory radar. Arguing, as we do, for a secular and unified right to freedom of religious and cultural expression does not amount to the demand that individuals must cough up their deepest and most private hopes and fears. This is Orwells Room 101: a technological fantasy of complete fascist control. When New Labour invent the machine that can monitor such thoughts, we'll campaign against it shoulder to shoulder with joetanega.
Stuart Toddington and Henrik Olsen April 31st 2008

[1] Olsen, Henrik and Toddington, Stuart Architectures of Justice (Bodmin: Ashgate, 2007)
[2] See Ibid. Chapter 5
[3] Gewirth, Alan Reason and Morality (Chicago: Chicago U.P. 1978)
[4] Fuller, Lon. L “The Case Against Freedom” in Winston, K. [Ed.] The Principles of Social Order (Oxford: Hart Publishing 2001) pp.317
[5] See (fn.1 supra) pp.67-70
[6] See (fn.4 supra)


John Flood said...

Is the concept of fundamental human rights egalitarian? I would hope so. And I don't think it necessarily has anything to do with probability per se. How one uses rights and how one is used by rights may well be the effect of statistical moments in society at large. Much of our lives, however, is quite predictable. Maybe religion is a way of introducing more randomness than we get. A more subtle method than that used by either the Azande or Luke Rhinehart in the Dice Man.

joetanega said...

I would like to thank Stuart Toddington for his helpful clarification of his definition of egalitarianism. And my apologies for mis-hearing what I thought was an unintentional apology for totalitarian rationalism. It appears that Toddington's concept of "egalitarianism" is not a static concept but a process that on the one hand, recognizes "vast differences of attribtues and capacities between persons" and on the other hand, somehow wiggles its way through to a "rational attempt to artificial equality from natural morality". For clarity sake, let's call the first state, a state of perceived uniqueness, and the second state, the rational and artificial state of longed-for equality. I understand that this is a Legal Idealist (Toddington's capitals) perspective of the process called law.

The question arises who decides what is rational, if what is rational is required for it to be protected in this realm of artificial equality?

The argument against Article 9 is a good case in point. Suppose Article 9 is part of the natural state of uniqueness, that is, in this world, people just so happen to believe that the freedom of religion is primary and fundamental. It's just one of those unique things that form part of our world--part of our perceived state of uniqueness. If this is the case then the move to the second state which eliminates this uniqueness appears problematical to say the least.

If I understand Toddington's argument against Article 9 correctly it is that those who assert the primacy and importance of the freedom of religion are merely making a circular and non-compelling argument. And besides they would be protected in every way by the other rights already afforded.

And what happens if any one of these other rights is pulled away? Is the freedom of religion diminished proportionally, incrementally, radically? If we are to take the argument that the freedom of religion is already protected and is not in any need for any special protection, then the freedom of religion would disappear at some point when the other rights are taken away.

But then who is to say when freedom of relgion once diminished is no longer protected by the other rights? Again, who is to say when or where or what part of this or that right protects this or that part of the freedom of religion? Whoever does so will necessarily have to make value judgments about the nature of this or that part of a religion. Goodness how intrusive that might be!

The point I was making about the "belief in darkness" which I see does not make much sense to the ultimate rationalist is that if the system of rational rules is wide and deep enough to accept that which is utterly religious, which is beyond any utterable discourse (so it's not protected by any freedom of speech or association or any of the other freedoms I can think of), then ok I agree. If not, then I beg to differ.

To put the matter a bit more pointedly, the assertion of the primacy of the freedom of religion is not that it is merely irrational. It is the assertion that the unutterable uniqueness of being should be preserved against the artifical world of egalitarian rights.

Everything else that Toddington has said I agree.

Deli Gergely said...

I have eagerly followed the discussion provoked by joetanega’s blog ’Egalitiarianism Riposte’. I became aware of the issue through reading the (fully downloadable) intro of Toddington’s book ‘Arhitectures of Justice’ written in co-autorship with Henrik Olsen. Here I just would like to add some brief remarks.
First, the gewirthian thesis that there is an objective and universal basis for moral rights and duties seems to be confirmed by the research results of other human sciences (see, for example, the psychological and evolutional arguments of Marc Hauser from Harvard College on the nature of moral judgments).
On the other hand, we should not forget that the starting point of the underlying theory, the model of the prospective, purposive agent (‘PPA’) is a highly fictitious one. I would compare the PPA to the prudent person of classical economics. It is without any doubt today that rational considerations alone do not explain human decision-making and behaviour.
Finally, really interesting questions emerge, if we consider private law aspects as well. How far should the legal order recognize the moral or religious belief of one of the contractual parties? Can I breach my contractual (i.e. legal) duty on account of my religious prescripts, and if yes, at which price?