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nations existing within larger states. Defenders of the individualist paradigm
claim that the logic of the language of rights will not bear such an interpreta-
tion, which inflates the currency of rights-talk to the point of devaluation. The
details of some of these debates will emerge in chapter 7, where questions of
religion and citizenship will be discussed.
This, in outline, is the liberal account of rights I shall treat as the starting
point for an interpretation of political harm fit to flesh out the reasonableness
defence of toleration such that oppositions like those between Waldron s
reasonable Muslim and reasonable pornographer can be analysed in a way that
does justice to the complaints of each party, and  the hope is  can be settled
in a principled and recognisably tolerant way. In the remainder of the book
various challenges to this account of rights will be presented through analysis of
some real world cases. Importantly, these challenges will be articulated in a way
POLITICAL HARM: THE LIBERAL PARADIGM 95
that is consistent with the reasonableness defence of toleration in virtue of the
appeals they make to their advocates important interests in being treated with
equal concern and respect in a way that reflects their dignity. Such challenges
to the account of rights informing a conception of political harm to be placed at
the heart of liberal lawmaking can be made in public reason. In that case they
cannot be ignored by political liberals committed to the use of procedures for
the construction of political principles informed by and justified in public
reason.46 Before moving on to these detailed worries, however, I shall briefly
present some more abstract concerns about the liberal account of rights just
sketched.
Liberal rights: some worries
There are three sites of disagreement between liberals and their critics with
respect to liberal rights that are relevant to the problems of toleration to be
considered in the rest of this book. These are: (1) that the account is exces-
sively individualistic and operates with an ethically impoverished vision of the
self; (2) that it reveals a gendered conception of justice; and (3) that it mistakes
the moral roots of justice.
The charge of excessive individualism was brought against liberals by commu-
nitarians in debates in the 1980s, and took two forms.47 First, that the liberal
emphasis on individual rights fails to acknowledge communities of shared values
and practices as providing a necessary social context without which the exercise
of rights would be impossible, or meaningless.48 In addition, not only does this
way of thinking about political priorities fail to acknowledge that such communi-
ties need political protection, it might also cause them damage by encouraging
people to use their rights as a way of distancing themselves from one another,
and thereby loosening the bonds of shared membership of a community. (With
Margaret Thatcher claiming in the  greed is good era of 1980s Britain that,
 There is no such thing as society ,49 this worry was very real.) Second, and at a
more abstract level, communitarians claimed that the methodology employed by
liberals in justification of principles distributing equal individual rights has an
objectionable metaphysical underpinning in a vision of the self as  unencum-
bered by particular social bonds. The fundamental interest protected by liberal
rights, it is claimed, is in the exercise of the capacity to revise life plans and
rethink the values informing them. But this suggests a conception of individuals
as capable of standing back from their attachments, values, and communities in
order to critically appraise them.50 Communitarians argued that this vision of the
self is false to the phenomenology of living a life, morally etiolated, and meta-
physically incoherent.
These theoretical worries about liberalism are echoed in many criticisms of a
rights-based account of the limits of toleration made in debates about multicul-
turalism, and the right to free speech. Advocates of principles of toleration
sensitive to multicultural concerns often argue that liberal rights  both in their
structure and their content  fail to register the significance of cultural member-
96 TOLERATION
ship for persons, and that the unfettered exercise of these rights by people
without such cultural attachments damages people with such attachments. In
particular, it is claimed that placing free speech within the limits of toleration,
regardless of what is expressed and how it is expressed, makes possible serious
attacks on the identity of members of vulnerable cultural groups which the
liberal rights-based approach fails to make politically salient.
The next cluster of worries about liberal rights is feminist. The most tren-
chant feminist criticisms of the liberal rights-based paradigm of harm insist that
an equal distribution of fundamental rights across men and women will only
evince real equal concern and respect for its members on the part of the state
once men and women are equal in power. In the absence of equality of power,
equality of rights at best provides women with merely formal protections and
permissions which do not translate into meaningful goods for them  on the
ground , and at worst actually masks deep inequalities of power across men and
women: for example, if there is no barrier in law to women pursuing the same
careers as men, then  it might be asked  what more is there to do, politically
speaking, in order to secure equality of employment opportunity for women?51
One ground on which feminists have claimed that inequality of power
persists relates to the family. Despite equal opportunities legislation, women in
Western democracies still bear most of the responsibility for child-rearing and
domestic work. Furthermore, career paths are structured such that women who
bear children are likely to exit the workplace at a time in life when employment
experience must be accrued if career progression is to follow. This means that
women experience a double whammy: if they return to work after bearing chil-
dren they are ipso facto disadvantaged in terms of career progression, and carry
extra burdens in terms of child care and domestic work that their male peers do
not have, and this further disadvantages them in terms of acquiring the neces-
sary experience to compete with men further up the career ladder, or at the
same point but with more experience. And these are just the problems faced by
women in stable relationships who have embarked on a career path before
having children. For single mothers without the education necessary for a
career, the prospects are far more grim.52 That the employment market accom-
modates the structure of men s lives and their expectations means that women
are disadvantaged in comparison with respect to power, both in this market and
inside the family itself, where women are economically dependent on men.
For our purposes this inequality of power, and the criticisms of the rights-
based paradigm of harm it generates, will become important in chapter 9, where
feminist critiques of arguments for the non-censorship of pornography which
invoke the right to freedom of expression will be considered. Here, feminists
have argued that, in virtue of various inequalities of power between men and
women, a defence of the right to free speech which permits the creation and
distribution of pornography undermines an equal distribution of this right across
men and women: pornography silences women, and a concern to treat all
persons with equal concern and respect should therefore require placing limits
on the freedom of speech of pornographers.
POLITICAL HARM: THE LIBERAL PARADIGM 97 [ Pobierz całość w formacie PDF ]