Fish on "Tolerance"

[Michael deHaven Newsom]

I don't think that I disagree very much with Rick's post below.  I guess that I am in favor of more candid
discussions of harm.  Professor Wing at Iowa has talked about "spirit injury."  I have not, unfortunately had a
chance to digest her thought on this subject, but it strikes me, whether one ultimately agrees with her or not, it
would be useful for us church-state types at least to look at her work and see if the concept of spirit injury
resonnates.   In a piece I have coming out shortly, I talk about two forms of harm (largely based on Lord Bryce's
analysis of church state law a century or more ago) -- status-based and psychological harm.

I just think that the law knows how to talk about harm (tort law, criminal law, certain aspects of property and
contract law, for openers), and I wonder whether we are not all better off if we frame the questions that we
consider as church-state lawyers and teachers in terms of harm.

But I certainly agree with Rick that the culture combattants tend to demonize their opponents with big words like
"intolerant" when we are really talking about harm and injury.


Rick Duncan wrote:

> I think the bottom line about the concept of tolerance
> is that *everyone* is tolerant of some ideas and kinds
> of behavior and *everyone* is also intolerant of some
> ideas and kinds of bahavior. Just like we are all
> sinners, every single one of us is also intolerant
> toward some people and their ideas and conduct.
>
> Catholics may be intolerant toward same-sex marriage
> and homosexual behavior, because they believe these
> kinds of relationships are immoral. Some gay activists
> are intolerant toward Catholics, because they believe
> that the Catholic concept of sexual morality is
> immoral.
>
> What bothers me is when one side self-righteously
> proclaims itself as the "tolerant" side and labels the
> other side "intolerant." Both sides are tolerant of
> some things and intolerant of others. They have
> different concepts of the good and that is what the
> debate should be about (not whether one side is
> tolerant and the other intolerant).
>
> If society can't tolerate the intolerant, then we
> *all* need a saviour because we are all on the
> Hellbound Train reserved for those guilty of
> intolerance.
>
> Cheers, Rick Duncan
>
> --- Michael deHaven Newsom <mnewsom at LAW.HOWARD.EDU>
> wrote:
> > I think that there are at least two rather different
> > ideas of "toleration" floating in Rick's remarks
> > below.  As I
> > have suggested before, the "weak" form of toleration
> > holds that all ideas are roughly equal in value, a
> > kind of
> > relativism.  The "strong" form -- the more difficult
> > one to practice, I think -- holds that even the most
> > obnoxious
> > and wrong ideas nonetheless have the right to be
> > heard, even though I might believe that the speakers
> > or adherents
> > or practitioners of those ideas are going to go to
> > eternal perdition or some such.
> >
> > The problem of toleration of the intolerant can be
> > analyzed in terms of the two forms of toleration
> > that I have
> > suggested above.  The notion that intolerance cannot
> > be tolerated, in the context of weak toleration, or
> > relativism, is difficult to defend, it seems to me,
> > because of the very relativism inherent in this
> > form.  I find
> > myself dwawn to the second form, as if that were a
> > surprise to anybody on this listserv, and I think
> > that I can
> > "explain" the problem.  Strong form toleration
> > presupposes that some ideas are terrible, harmful or
> > worse, but
> > that, for other reasons, they are to be tolerated.
> > Those reasons include considerations of practicality
> > and
> > pragmatism and expedience, considerations of
> > morality, and, perhaps most importantly,
> > consideration of the
> > possibility of human error and mistake with regard
> > to a point of view on a matter.  Having said all of
> > that, there
> > is, lurking behind all of the foregoing, the
> > question of political, institutional, structural and
> > personal
> > survival.
> >
> > Having already granted that some ideas are harmful,
> > it is not much of a stretch to conclude that some
> > ideas cannot
> > be tolerated because of the nature of the harm that
> > they will inflict on those called upon to be
> > "tolerant."
> >
> > As is often the case, the proper discussion concerns
> > harm, not abstractions about what is or is not
> > toleration, or
> > even what the limits of toleration, in some abstract
> > sense, ought to be.  Discussions of survival make
> > real sense
> > to me, and, I suspect, to most people.
> >
> > Gay rights advocates are indeed being "intolerant"
> > (in the "weak form" of toleration)  in the criticism
> > to which
> > Rick adverts.  Criticism is tantamount to
> > intolerance.  This is one of the basic problems, of
> > course, with
> > relativism.  The question is, with all respect, so
> > what -- what is the harm in that particular
> > intolerance?  From
> > the perspective of "strong" form intolerance, don't
> > the considerations of pragmatism, morality, and
> > human
> > imperfection suggest that we just put up with the
> > attacks on the Catholic Church -- my church, by the
> > way --
> > because whatever harm the attack might cause, it
> > does not implicate the survival of important
> > interests,
> > structures, institutions and persons?  In other
> > words, hold to strong form toleration and leave it
> > at that.
> >
> > Strong form tolerance does not use the culture wars
> > as a referent in deciding the measure or ambit of
> > toleration.
> > Survival is a rather different animal, and is the
> > proper referent.  (I grant that some of the culture
> > warriors
> > believe survival is at stake, but that leads to a
> > rather different, albeit related and critically
> > important,
> > discussion.)
> >
> > Rick Duncan wrote:
> >
> > > Larry makes some excellent points here. But I
> > don't
> > > agree that it is uninteresting to observe that the
> > > concept of tolerance is *often* used (particularly
> > in
> > > the culture war in academia) as a justification
> > for
> > > condemning or marginalizing proponents of the
> > other
> > > side. When, under the banner of tolerance, gay
> > rights
> > > advocates attack the Catholic Church as evil
> > because
> > > of its views about human sexuality and marriage,
> > they
> > > are being intolerant (not merely refusing to
> > tolerate
> > > the intolerant).
> > >
> > > I like the Fish quote because it reminds me that
> > we
> > > should stop and think twice before saying "amen"
> > when
> > > someone says "the liberal virtue of tolerance
> > requires
> > > me to condemn and marginalize orthodox Catholics,
> > or
> > > 'fundamentalist Christians' or the Boy Scouts or
> > > whomever"  To the contrary, it may well be that
> > the
> > > virtue of tolerance requires *even liberals* to
> > > tolerate those groups and others who have a
> > different
> > > understanding of the good.
> > >
> > > Of course, context matters. But it would be a good
> > > idea for all of us to erect a huge WARNING SIGN
> > > whenever we hear anyone say that tolerance
> > requires
> > > him to condemn (or outlaw) someone he believes to
> > be
> > > unacceptably intolerant.
> > >
> > > Cheers, Rick
> > >
> > > --- Larry Sager <lgs at WORLD.STD.COM> wrote:
> > >
> > > <HR>
> > > <html>
> > > <font size=3>Fish doesn't say or mean that
> > tolerance
> > > is sometimes or
> > > often used as a mask for something different.  He
> > says
> > > the invocation of
> > > tolerance is &quot;always the same&quot; ,
> > > &quot;invariably&quot; leading
> > > to the mirror-image of the intolerance it decries.
> > > And he names a broad
> > > roster of names of those who have so sinned:
> > &quot;
> > > Locke or Nagle or
> > > Conkle or  Thiemann or Gutmann and
> > > Thompson--philosophers, theorists,
> > > liberals, conservatives&quot;.  The claim that
> > > intolerance is sometimes
> > > or often abused is not very interesting, and as a
> > > statistical ad hominem,
> > > not easy to confirm or disconfirm.  But Fish's
> > claim
> > > is deeper and would
> > > be interesting if it were original and if it
> > weren't
> > > simply wrong.<br>
> > > <br>
> > > Fish is simply exploiting something most of us
> > > discovered in high school
> > > or thereabouts:  that the one thing tolerance
> > cannot
> > > embrace is
> > > intolerance.  Anyone arguing for tolerance is
> > arguing
> > > for a stance
> > > towards &quot;the other&quot; that makes space for
> > the
> > > other on terms of
> > > <i>mutual</i> fairness and acceptance.  In the
> > domain
> > > of religion
> > > tolerance requires that all members of the
> > relevant
> > > community mutually
> > > adopt terms of membership and governance pursuant
> > to
> > > which no one is
> > > extended greater or lesser regard on account of
> > their
> > > religious views.
> > > Now some group within the community might hold
> > > religious views that
> > > insist that their's is the only true religion and
> > only
> > > those who hold
> > > their views should be entitled to respect, to
> > > membership in the political
> > > community, to the vote, etc.  Now proponants of
> > > tolerance have to insist
> > > that the views of this group not be made
> > operational
> >
> === message truncated ===
>
> =====
> "Do you not think an angel rides in the whirlwind and directs the storm."
>     --President George W. Bush (quoting John Page)
>
> "When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone."  -C.S. Lewis
>
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