Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, June 29, 2014

Irony and Tragedy: Reply to Marc

Thanks, Marc, for the thought-provoking responses to my questions about irony and tragedy as approaches to understanding religious-liberty (and other) conflicts. Here are a few quick responses. A tragic diagnosis might be more accurate than an ironic one*/ on balance, or for some range of cases—say, the most difficult and vexing ones. That is, there’s surely some point where values and ways of life become incommensurable, no moral appeal to more general commonalities is sufficiently relevant or persuasive, and the only possibility is a pragmatic compromise that heads off worse harms. Both I and (as you mention) Niebuhr acknowledge that. And many of the pro-religious-exemptions arguments made by Berg-Esbeck-Garnett-Laycock-Wilson et al. are self-consciously pragmatic. The question, I think, is how quickly we should reach the conclusion that case-by-case compromise is all there is; or whether moral appeals to a sense of irony or humility can have any significant effect in meaningful cases of conflict. I think you’re saying “No they can’t,” and I have a few reactions.   

1. That seems to me too much of a blanket denial. As I see it (and I think as Niebuhr saw it), human beings have highly divergent beliefs and projects stemming from their different situations, experiences, and attitudes; but they also share certain commonalities at more general levels, and they have some capacity to recognize those commonalities. You say that “[t]he opposing sides [in religious-freedom disputes] are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life.” You say that they cannot accept in principle any liberty or equality claims of the other side, because “[t]he other side’s success inevitably detracts from the larger moral vision.”

     I doubt that this reflects our constitutional system—even in its reality, not just in its rhetoric—or that it could sustain that system. The same things could be said be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other’s side ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise? I concede that as the cases get “harder,” they become more difficult, and eventually impossible, to resolve through consensus principles; each side will point to a plausible general-consensus principle that supports its position, and the conflict cannot be fully resolved by either principle. But before we reach that point, it seems to me, there are many cases where a lot of people can say, “I disagree strongly with your underlying beliefs or views—I may even despise them—but I can see that you are asserting a legal claim that in principle falls in the same category as mine.”

     That commonality—a recognition of the parallel role another person’s beliefs or practices play in his life—is different from, and more modest than, commonality in the sense of agreement in the substantive beliefs themselves. To be clear, I’m not claiming that the fuller commonality (substantive agreement) exists in the major conflicts we have now, or that it has to exist. It might, to one extent or another. The only way we can know how far commonality goes is to test it, by making arguments based on moral principle as well as pragmatic calculation. It’s in the nature of legal craft and statecraft—their historical, traditional nature!—to combine the elements of principle and pragmatism.

2. I’d say two other things in support of the role of moral arguments for humility and commonality. One is that moral views can change: the “different views of the human good and of the moral life” can evolve, at least at some edges, over time in response to experience and the assertion of other moral views. The white South in the 1940s had a dominant view of human good and morals concerning race that was quite different from the views today (however much one thinks the views have changed, they definitely have changed some). Although there’s debate over how much of the change came from appeals to moral principle and how much from legal coercion and simple resignation to reality, it seems doubtful to me that the moral lessons advanced by King and the civil-rights movement through speeches and action—lessons about the commonality of blacks and whites as human beings—played no role in changing others’ minds. (Niebuhr in the 1930s was skeptical that moral appeals by blacks would have any effect; but King understood non-violent protest as a means of combining moral appeals with pragmatic pressure; and Niebuhr admitted, as he had to admit, that the movement had found an effective balance.)

     Moreover, as the civil rights movement also shows, moral appeals to humility and commonality can affect the center even if they don’t affect the hardest fighters in the conflict. I’m frequently told that arguing for religious-freedom exemptions for religious traditionalists is pointless because progressive activists are unmovable: I respond that the key audience to persuade is not activists, but people in the middle, who increasingly support gay marriage but are likely uncomfortable with seeing traditionalists squashed. I say something similar to gay-rights proponents who argue that every exemption is a victory for the side that’s blocking gay marriage or anti-discrimination laws: to get such laws passed, or establish them more firmly, they should pay attention to that middle who may see some merit in both sides’ claims.

3. Apart from the relative accuracy of irony vs. tragedy, there’s a strong suggestion in your posts that the ironic approach is arrogant. (“There is a clever detachment about the ironic disposition, a knowing, worldly wink that bespeaks savvy and a fullness of understanding acquired through long experience. Ironic cleverness implies the holding of better, more accurate information, as well as comprehending judgments about those who are not in the inner circle.”) Niebuhr often gets accused of this, sometimes rightly; but to apply it to the ironic approach in general doesn’t seem fair. For one thing, an ironic thinker who believes that people should examine their judgments with humility can, and should to be consistent, apply that to her own judgments too. Moreover, I don’t understand why a tragic diagnosis is any less presumptuous, if it says that worldviews and ways of life are everywhere incommensurable and have no actual or potential commonalities. The tragic analyst, you say, has “scratched below the surface [similarities]” in terms like liberty and equality and has seen that there is really no overlap. Is that any less a claim to greater “savvy,” “worldly” wisdom, and “fullness of understanding”? Is it any less presumptuous to assert that conflicting parties can never recognize any commonalities that are relevant than it is to assert that they (sometimes) can?

     Every attempt to sketch out the dynamics and management of social conflict runs the risk of presumption. Rather than ask which approach presumes to be more knowing, I think we should simply ask which (or what combination of the two) is more accurate and fruitful.

4. Although this doesn’t directly pertain to “irony vs. tragedy,” a quick comment about the emphasis on history as a proper guide to decision-making under a tragic approach. I don’t see that the connection between the tragic and the historical sense is a necessary one. If the modest practical goal under a tragic approach is, as you say, “to convince people that a state of social disharmony and disagreement about the deep issues is a far better thing than a state of harmony and agreement,” reliance on historical settlements might serve that well—but it might not. Perhaps some other modest, non-idealistic method will serve the goal better—for example, a simple deference to the results of legislative bargaining. In fact, in a period of increasing pluralism, as we have today, settlements reached in a less pluralistic past may tend to give insufficient weight to the value of deep disagreement that you posit. To take just one possible example, if our views of human good are even more pluralistic today than before, then the historical settlement that encourages (without requiring) the channeling of all children into public schools may be inadequate today.


*/ As in my previous post, by “irony” I mean something like Niebuhrian irony, not Jimmy-Kimmel irony.


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