Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law - Softcover

Tuckness, Alex

Softcover

ISBN 10: 0691095043 ISBN 13: 9780691095042

Verlag: Princeton University Press, 2002

Inhaltsangabe

Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate--what Tuckness terms the "legislative point of view"--has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke made explicit in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.


Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory.

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Alex Tuckness is Assistant Professor of Political Science at Iowa State University.

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"This clearly written book tackles an indisputably major topic of long-term importance, and does so with ingenuity. No one has developed the idea of a 'legislative point of view' as has Tuckness. He does a spirited and convincing job of explaining the originality of his interpretation of Locke, and finds something new and fresh to say about some very well-worn topics."--Richard Vernon, author of The Career of Toleration: John Locke, Jonas Proast, and After

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Locke and the Legislative Point of View

Toleration, Contested Principles, and the LawBy ALEX TUCKNESS

PRINCETON UNIVERSITY PRESS

Copyright © 2002 Princeton University Press
All right reserved.
ISBN: 978-0-691-09504-2

Contents

ACKNOWLEDGMENTS................................................................................xiABBREVIATED REFERENCES.........................................................................xiiiIntroduction...................................................................................1PART I The Legislative Point of View and the Ends of Government...............................15CHAPTER 1 Contested Laws and Principles.......................................................17Contested Principles and the Legislative Point of View.........................................25The Analogy between Laws and Moral Principles..................................................31CHAPTER 2 Contested Principles and the Legislative Point of View..............................36Rule-Utilitarianism and Contested Principles...................................................36Locke, Proast, and Contested Principles........................................................39The Secular Analogue of the Lockean Argument...................................................46Two Illustrations..............................................................................51CHAPTER 3 Legislative Consent and the Public Good.............................................57Problems with Contractual Consent..............................................................66Locke's Legislative Consent and the Public Good................................................74CHAPTER 4 Beyond Neutrality and Perfectionism.................................................85Two Liberal Approaches.........................................................................85Rawls and Reasonable Agreement.................................................................88Raz and Human Well-Being.......................................................................101Beyond Neutrality and Perfectionism............................................................110PART II The Legislative Point of View and Constitutional Roles................................115CHAPTER 5 Institutional Roles and the Legislative Point of View...............................117Locke on Legislative and Executive Powers......................................................121Locke and the Missing Judicial Power...........................................................127Judges as Legislators: Functions versus Institutions...........................................132Implications for Contested Roles...............................................................135CHAPTER 6 Contested Roles, Interpretation, and the Framer's Point of View.....................137Contested Jurisdiction and the "Framer's Point of View"........................................140Contested Constitutional Jurisdiction in the United States.....................................143Dworkin and the Legislative Point of View......................................................147Originalism and the Nature of Law and Legislation..............................................159Boerne v. Flores...............................................................................166Contested Roles and the State of Nature........................................................172Conclusion.....................................................................................174APPENDIX 1 Textual Support for the Legislative Point of View..................................179APPENDIX 2 Locke's Theory of Consent and the Ends of Government...............................181BIBLIOGRAPHY...................................................................................191COURT CASES CITED..............................................................................199INDEX..........................................................................................201

Chapter One

Contested Laws and Principles

Toleration is a defining aspect of liberal thought. Although it is quite difficult to give a definition of what set of characteristics is necessary and sufficient to describe a view as liberal, one can say that any view that completely rejects the idea of toleration is not liberal. A doctrine of toleration holds that there are times when it is morally right to refrain from attempting to put a stop to some action or state of affairs that one thinks is morally wrong. It holds that there are moral reasons not to do so even when discouraging the action is feasible. Liberalism thus requires a certain kind of "bracketing" where individuals decide not to act politically on certain principles and values that they believe to be true.

It is precisely this core aspect of liberal thought that has drawn criticism because it is clear that in many cases "bracketing" is the wrong response. Michael Sandel, for example, argues that we often cannot bracket controversial moral beliefs without begging the question against those who disagree with us. Sandel gives two stark examples: debates over slavery and abortion. Before the United States Civil War, Stephen Douglas claimed that we should bracket the question of whether slavery is right or wrong and, as a nation, be neutral on the question. Each state should decide for itself and tolerate other states that come to different conclusions. Lincoln replied that it was reasonable to bracket the question of slavery's morality only if one had already decided it was not abominable. In the case of abortion, prochoice advocates claim the government should tolerate abortion, allowing each person to choose for herself just as the government allows each person to choose what religion she will follow. "But if the Catholic church is right about the moral status of the fetus, if abortion is morally tantamount to murder, then it is not clear why the political values of toleration and women's equality, important though they are, should prevail." Sandel's point is not to argue against abortion but to suggest that we cannot give a coherent answer to a difficult question like this without invoking controversial beliefs.

The problem Sandel identifies is not a new one. In fact, liberalism from its earliest formulations has drawn the criticism that it begs the crucial questions. The problem lies in the very idea of toleration itself, as toleration seems paradoxical. To use Sandel's examples, if one really believes abortion or slavery is wrong, why would one think it morally right for the government to tolerate such practices? We can see this more clearly if we state the definition of toleration more precisely. The most important part of the definition is that, strictly speaking, the question of toleration arises only when one confronts something of which one disapproves. Thus, strictly speaking, a person who does not think there is anything wrong with homosexuality does not tolerate it. Such a person is either indifferent to it or approves of it. The latter case does not present a paradox. If one is indifferent to or approves of homosexuality, then it is relatively obvious why one is under no obligation to try to put a stop to it. But for someone who truly does think it is wrong, the paradox seems quite real. It is a paradox because we not only agree that the action is wrong, we also agree that tolerating it is right. Were tolerating the action wrong, the paradox would again disappear. The paradox is heightened when we note that genuine cases of toleration arise when we actually have the power to put...

Details zur Ausgabe

• Verlag: Princeton University Press
• Erscheinungsdatum: 2002
• Sprache: Englisch
• ISBN 10: 0691095043
• ISBN 13: 9780691095042
• Einband: Taschenbuch
• Anzahl der Seiten: 224
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar