Sunday, January 06, 2013

Jeremy Waldron on Toleration, Dignity, Human Rights and Majority-decisions

Professor Jeremy Waldron has posted four new papers at SSRN:

"Toleration: Is There a Paradox?"

"Philosophers (Bernard Williams, for example) often talk of a paradox of toleration. They say that we can only be said to tolerate that which is acknowledged to be bad or wrong; but, thye continue, if something is acknowledged to be bad or wrong, the proper response is to suppress it or act against it. I think this appearance of paradox can very easily be dissolved. If something is bad or wrong, then the person who judges it so commits himself to avoiding it in his own actions and choices; but he does not by any logical implication of "bad" or "wrong," commit himself to acting coercively against it. Acting coercively is quite a distinctive response and it requires a myriad of reasons which are not generated by a simple moral condemnation. Practices of toleration flourish in the gap that this opens up. I also pursue a second line of argument which goes as follows: despite the philosophers' definitional announcement, it is not the case that we can only be said to tolerate that which we judge to be bad or wrong. The idea of toleration is much broader thnaa that. Philosophers tend to confine it stipulatively to the narrower sense in order to generate the alleged paradox. But since the paradox doesn't arisse anyway, there is no justification for the narrower definition."

"Is Dignity the Foundation of Human Rights?"

"The paper will consider the common claim that human rights are based on human dignity as a foundational value. I will make some criticisms of that idea, arguing instead that dignity is a status that comprises fundamental human rights rather than being a value that functions as a major premise of rights claims."

"Citizenship and Dignity"

"Theories of dignity have to navigate between two conceptions: the egalitarian idea of human dignity and the old idea of dignitas, connected with hierarchy, rank, and office. One possible way of bridging the gap between the two is to talk of the dignity of the citizen. In modern republics and democracies, the dignity of the citizen extends to a large sector of the population and connotes something about the general quality of the relation between the government and the governed. This chapter first explores Immanuel Kant’s account of the dignity of the citizen, and then it pursues the implications of the dignity of the citizen for modern society and modern theories of human dignity. Though the dignity of the citizen and human dignity are not the same concept, they are congruent in many respects and the former casts considerable light on the latter — in particular on the connection between dignity and responsibility and dignity and transparency in social and political relations."

"Five to Four: Why Majorities Rule on Courts"

"Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decsions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciatiions of democratic majoritarianism."

Jeremy Waldron is University Professor at New York University School of Law.

See my post on his latest book "The Harm in Hate Speech" (Harvard University Press, 2012). The book is based on Jeremy Waldron's three 2009 Oliver Wendell Holmes Lectures. They were published in 2010 in "Harvard Law Review" [pdf].

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