Pluralism and Tolerance

Philosophy of Law – 2015/2016

• Since beginning of times existence of plurality of ethics and cultures

• Today more evident, visible• Our society is characterized by cultural pluralism

1)anthropological-cultural studies allow as to see historically and geographically far cultures going into detailed descriptions and interpretations

2) Rise and more rapid migratory phenomenon from developing countries to developed countries leads to co-existence in society characterized by a mult-ethnic complexity

Multi-culturalism

• rises several issues;• Studied by various disciplines: ethnography; ethnology and cultural

anthropology; history; sociology; psychology; ect.

• Philosophy of law (as the reflection on the intrinsic sense of law in the inter-subjective human practice) deals with the existence of the «in fact» phenomenon to raise the issue of the «on principle» problem or rather questions multi-culturalism as a theoretical problem even before being a practical-applicative one

• In this sense, its not a question of finding the right legal solutions in order to solve the disputes among different cultures but need to elaborate an organic critical overall reflection on the issue

• Pluralsitic fragmentation, on one hand• Seek for universality on the other

• Two opposing models of thought• relativism and universalism• + Intermediate zone

Ethnocentrism

• one’s own culture is hierarchically superior to all others (imposition of one culture over other cultures, considered inferior):

• absolutization of one culture

• imposition on one group of foreign practices beliefs, values(colonialism/imperialism/paternalism)

Ethnocentrism

• Unacceptable

• “Subordination model” • discriminates and denies • equality among group of men • and possibility for intercultural dialogue

Multicultural theory

• Relativist model:

• Every culture is a system that finds a meaning in itself; auto-referential (sense understood only from inside)• plurality of cultures that are juxtaposted(lack common criteria of

measurement)• search for common values is futile and undesirable, considering

plurality better than unity as an expression of richness and originality

Relativist model

• Does not “superficially”recognise cultural variability• but confirms irreducibility of multiplicity of cultures to unity of

sense

• Every culture is a self-referential system

Meaning of tolerance in this context?

• tolerate=embrace every culture for the simple fact it exists and in the very way it manifests itself

• tolerance: passive and indulgent acceptance of every culture without making any ethical judgement

In relativist model one cannot and must not judge a culture and thus every culture should be considered equivalent

Relativist model

• Questions principle of equality

• each culture is a “closed” world

• internally affirms its own values and preserves its own traditions• externally tolerates any other culturethe individuals of different ethnic groups should be guaranteed by the

broadest possible conservation of what makes them different

Critics to relativist model

• the principle of equivalence as neutral and uncritical acceptance of every culture is unable to avoid cultural conflict among cultures which are opposing and incompatible (allowing the stronger culture to prevail over the weaker one)

Principle of tolerance becomes inconsistent

• Equivalence (exaltation of cultural differences) can lead to self-closure of each culture in itself (anyone not belonging to it is considered an• extraneous)resulting in incommunicability

Intercultural theory

• against hierarchy among cultures and against equivalence• every culture is judgeable: it is a duty to express judgement on

different cultures• not a judgement of superiority or inferiority, but a judgement of

truth in reference to human dignity/social coexistence, considered as the minimum common value

Intercultural theory

•equality must ensure that all men, regardless of cultural belonging, have the possibility of knowing each other as human beings (before realisation of their belonging to a specific cultural group) • affirming equality means assuming the differences:

equality is the precondition for “recognition” of the “differences” as significant interaction between human beings

Intercultural theory

- critical search for continuous mediation and integration of human rights and the specific needs of diverse cultures

- affirming the relational logic of diversity in equality

Equality and differencePhilosophy of law

• Multi-culturalism like other phenomenon created need for a «right to recogntion»at a juridical and poltical level «of the differentation» national/sexual/cultural belonging

• Diversity claims it’s recognition calling for the law to take a stance at an applicable level

• Philosophy of law is called to formulate a new reflection

Relationship diversity and equality

• It is the problem of the relationship between the need for the recognition of diversity and the principle of equality

• Demand for differentation is compatible with the principle of equality?

• Does diversity integrate with equality or claims to substitute it?

Principle of equality and relativistic theory

• The Principle of equaltiy criticized by relativistic theory since it is accused of being

• an abstract and formal principle that neutralises or conforms differences (also the differences between nations, sexes,cultures)

• That can lead to two dangerous outcomes:• In-difference by which we mean the ignorance(inadeqaute

consideration of differences) • Assimilation intended as the cancellation of differences)

• In both cases according to the relativist modeloutcome is discrimination of diversity

• Relativists propose substitution of difference with equality

Equality• But what do we mean by equality?

• As a philosophical concept= substitutability between two terms in the same context.• Equality does not match with identity, but presupposes diversity: only

if two things different things have significant similar characteristics can they be said to be equal, otherwise they are identical

• Juridically to apply principle of equality intended in this sense means to treat equals,equally and different differently• To treat equally means to recognise equal dignity to every human

being in a universal dimension that refers to «all».• So presupposition of universal equality is the recognition of intrinsic

dignity of every human being and social co-existence.• Equality is opposed to the arbitrary priviliges and discrimination on

the (political or ethnic belonging, sex, but also age, sociabasis of exterior features l and personal conditions)

• The universal principle of equality extended to all human beings cannot disregard the concrete context of existential diversities: if different situations are treated equally discriminations are introduced (i.e.indirect discriminations)

• Equality therefore implies the identification of difference and the consideration of the factors of diversity in order to:

• Compensate• Repair• Rebalance disadvantaged situations(physical or social)

• Also with positive actions (i.e. think of norms that foresee support for the disabled or the marginalized or particular conditions for women during maternity)

In law,equality precedes/foregoes difference• In what sense does equality precedes diversity?

• In the sense that the universal juridical logic already incorporates diversity, up to the extent to which the law considers man as a man, regardless of the differences

• Equality has priority over diversity but cannot deny or neglect diversity

• the absence of a dialectic between equality and diversity can lead to two outcomes: • absolutization of equality that denies difference • or the absolutization of difference that denies equality

• Both cases deny intrinsic meaning of equality which is reciprocal and symmetrical relationality without prevarication

Jurist’s function

• In this context, jurist function not that of legittimating every differentation request

• But recognizing the differences to the extent that these differences do not deny the intrinsic sense of lawfulness and therefore of human dignity and social coexistence

• It is the relational legal criteria that must guide choices: to the extent that specific recognition of the diversity would alter the coexistential relation, it could not be considered genuinely legal.

• Philosophy of law’s task is to elaborate possible theoretical lines of thought to conciliate the requirements for differentation with the demands for equality , by means of a continuos comparison with the needs arising from practice and the original meaning of law.

• The juridical relational criterion has to guide choices:• If recognition of diversity alters co-existential relationship, it cannot

be recognised as authentically juridical