PRIN 2010-11

Within a national research program, coordinated by Laura Bazzicalupo and funded by the Italin Ministry of Education (PRIN 2010-11), PTP promotes the project:

Disagreements, conflicts, disputes. Inclusion and Exclusion in Public Discourse

To appropriately account for the phenomenon of disagreement and its normative relevance for politics, it is necessary to distinguish its various sources and forms, to identify those issues about which individuals disagree and those strategies apt to deal with it. Aiming at analysing how to determine the boundaries of the concept of disagreement and to understand its epistemological and metaethical characters, disagreements regarding different and contradictory conceptions of life and death and issues concerning individual well-being, proposing conflicting conceptions of the good and happy life, are going to be considered. Disagreements of this kind are more and more relevant and present in contemporary politics and it is important to question whether such presence is either problematic or positive. In particular, it is important to understand whether such disagreements can be considered disputes, deep contrasts which may lead to deadlocks in which each one’s argument seem equally strong and unappealing for the other. Although such disagreements may not be resolvable through rational argumentation and, thus, should be considered intractable, it is important to understand that the parties at dispute strive to persuade one another of the rightness of their own thesis and engage to defend it. In this sense, since they need to measure their own opinions in rational discussion, the parties at dispute present their beliefs and in so doing those beliefs become explicit and the deepest assumptions beneath them are to be compared and measured. Indeed, the potential of moral and metaphysical disputes is evident when legitimate visibility is recognized both to those reasons at stake and to the dynamics of disagreement which guide the discussion and limit it to a normative comparison which is relevant independently of its solution.

Given the possibility and relevance of rationally irresolvable disagreements, the research will focus on those political and legal strategies for the regulation of political disagreements concerning the justifiability of institutions, laws, and norms, which may cause social conflicts when not applied correctly. The research will consider those disagreements concerning the regulation of norms for the disposal of one’s body by public agencies, upon the morality of which individuals disagree; and those disagreements concerning the role of public agencies in the regulation of economy and distribution of material goods. First, it is important to consider those strategies which assume that political disagreements can be resolved for there is only one correct and identifiable solution to the issue at stake. Such strategies imply the claim that norms are absolutely valid and that each and every rational person should be able to recognize. A second kind of strategies does not intend to resolve disagreement, but to deal with it peacefully in order for it not to turn into conflict. Such strategies grant, in the form of fundamental rights, spheres of liberty and individual autonomy within which individuals are free to act as they please, without the need of accounting for their behaviour to others. Strategies that defend procedural mechanism, as the rule of majority for the production of decisions binding for all (though always revisable) or the idea of compromise, fall in this category. Finally, there are strategies that assume the inescapability of disagreement and, thus, are ready to sacrifice the principle of formal legal equality and also the integrity of the political society to insure that each person can live under each one’s system of rules and values. An example of such approach is normative pluralism, intended as a possible solution to the problem of political disagreement. In the research, all these strategies will be judged upon and evaluated with respect not only to their feasibility, but also their effects in terms of inclusion and exclusion.

Hide Abstract

The phenomenon of disagreement and that of the related conflicts are linked to the fact of pluralism, namely to the presence, within a single society, of individuals and groups endorsing different, and often conflicting, religious or secular worldviews, beliefs, values and ideals. Within the current debate in moral, political and legal philosophy, the focus on disagreement and pluralism is partly due to the influence of Rawls’s work [Rawls 1993] in which pluralism, and its potential for generating conflicts, is presented as crucial. However, the focus on disagreement and pluralism can be explained also with reference to the mobilization of minoritarian social groups aimed at gaining recognition for their cultural diversity and whose claims have been at the centre of several analytical reconstructions [Young 1990; Honneth 1992; Galeotti 1999; Benhabib 2002; Taylor e Habermas 2002; Fraser and Honneth 2003].

Contemporary philosophical reflection has focused especially on normative disagreements, whose sources are alternatively traced back to the presence of incompatible values [Gutmann and Thompson 1996, Gray 1997], to the semantic vagueness of normative concepts, to the essential contestability of such concepts, or to the limits of human reason, qualified by Rawls as the “burdens of judgment”. Similar disagreements are due to the unavailability of a conclusive rational argument attesting the wrongness of one of the thesis at stake [Horton 2010], and not to errors or faults of one of the individuals involved [McMahon 2009]. Examples of this kind of disagreement are those concerning the permissibility of abortion [see Grisez 1970, Tooley 1983, Kamm 1992, Dworkin 1993] and the role of the state in the redistribution of resources [see Rawls 1971; Nozick 1974; Dworkin 2000].

The model of liberalism Rawls labelled “political liberalism” [see also Larmore 1994] relies on the questionable idea that reasonable disagreement – which, as such, both qualifies as persistent and makes solutions aimed at solving it illegitimate – coincides with disagreement on the good, namely with disagreement on philosophical, moral and religious questions, while it does not concern questions of justice, on which consensus is, on the contrary, possible. On such a model, legitimate political principles are principles that can be justified on the basis of public reasons, which qualify as acceptable for all reasonable individuals since they are independent from controversial philosophical, moral and religious assumptions. Reasonable disagreement is thus limited and questions that cannot be discussed on the basis of shared justificatory criteria or standards are excluded from public deliberation, with the aim of securing consensus on principles of justice. Disagreements concerning the latter are indeed presented as unreasonable and, as such, unworthy of normative reflection. This leads to the paradoxical outcome that most relevant disagreements cannot be even considered. Indeed, on such a model, intractable disagreements, namely disagreements that, for instance, engage with conflicting metaphysical conceptions and that cannot be dealt with within the limits of a shared conceptual frame or with reference to shared justificatory standards, can be addressed neither by theory, nor by the parties involved.

Several criticisms have been raised against the Rawlsian model. On the one hand, it has been argued that it is not plausible to maintain that reasonable disagreements concern only the good and not the right [Waldron 1999, Reidy 2006]. On the other hand, it has been contended that the exclusion of reasons based on philosophical, moral and religious beliefs from public discourse turns into a lack of respect toward individuals who endorse reasons, which, though not de facto shared, they consider valid and worthy of being publicly discussed [Archard 2001]. Moreover, limiting disagreement and displacing it outside the boundaries of the public sphere seems to improperly reduce politics to the search for consensus. Indeed, according to alternative approaches, disagreement is a distinctive feature of politics, and the point is not to suppress it, but rather to emphasize its positive import and to set institutional forms apt to allow a fruitful confrontation among conflicting positions [Mouffe 2005, Connolly 2008].

Disagreement, and especially moral disagreement, has been a relevant object of analysis also in meta-ethical debates, where disagreement has always represented a crucial element to distinguish different theories on the nature of morality. According to realism, for instance, moral judgments are truth apt and have a representative function. In this sense, disagreement is considered as caused by different understandings of non-moral facts [Brink 1989], by the different sensibilities through which we interpret moral values [Wiggins 1976], by the fact that morality is indeterminate [Shafer-Landau 2003]. According to constructivism, moral claims are truth apt, but they are mind dependent in their being constructed through an ideal, rational procedure. Given this framework, disagreement is explained as a lack of rationality [Rawls 1971] or reasonableness [Scanlon 1998] by those who engage in the dispute. Finally, according to non-cognitivism, moral judgments are expressions of mental states and, thus, disagreement is considered a conflict of emotions [Stenvenson 1944] or attitudes [Blackburn 1988].

In law theory, the paradigm of juridical pluralism has devoted particular attention to pluralism, and to the connected disagreements or conflicts. Juridical pluralism develops in opposition to the monism typical of legal positivism [Ehrlich 1913, Romano 1917] and as a response to the presence, within a single society, of different social groups regulating their conduct on the basis of different norms (whose origin could be customary, religious, juridical, etc.). Juridical pluralism has then been endorsed and further elaborated by anthropologists of law [for a review of the different positions, see Rouland 1988, §§ 45-57], initially, with reference to colonial countries. The models of juridical pluralism, intended as normative pluralism, have been applied also to the analysis of contemporary societies, characterized by culturally heterogeneous populations and by the presence of non-autochthonous communities orienting their conduct on the basis of norms (belonging to the habits and/or the law of their country of origin) that interact with the law of the State, is increasingly relevant [Merry 1988; Facchi 2001; De Sousa 1995; Melissaris 2009].

In contemporary debate, various proposals have been advanced for addressing normative disagreements and the conflicts they can originate. Some scholars deem it possible to solve disagreement since they admit the possibility of identifying a correct answer to the question at stake [see Dworkin 2011]. Other less optimist authors about the possibility of solving disagreements have developed strategies, which are meant to prevent disagreements from turning into conflicts. Among these strategies, it is worth mentioning the appeal to procedural practices for taking decisions that are binding for all, through compromise or through the imposition of majority will, for instance [Habermas 1992, Gutmann and Thompson 1996]). Furthermore, it is worth signalling that other strategies rely on recognizing, to individuals and groups, rights to individual liberty, autonomy or self-government, which protects domains within which each is free to choose how to regulate his/her conduct and relationships on the basis of his/her moral commitments [cfr. Rawls 1971, Nozick 1974, Kymlicka 1995, Kukhatas 2003, Ferrajoli 2007].

References

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Hide State of the art

Disagreement represents a peculiar feature of political life and it is a fundamental concept to account for strategies of inclusion and exclusion, which operate within public discourse. According to prominent philosophical approaches, highly controversial issues – as those concerning life and death, the good life and the happy life – should be excluded from public discourse. Moreover, in public deliberation, the possibility of defending one’s positions by presenting arguments based on controversial beliefs or conceptions, ethical of metaphysical, should be forbidden. Given the phenomenon of pluralism characterizing contemporary liberal societies, such philosophical strategies aim at limiting disagreement in order to neutralize its possible disturbing effects on social stability and to secure the consensus of citizens to a framework of fundamental political principles. The hypothesis at the heart of this research project is twofold. On one hand, it seems that philosophical approaches, such as those described above, arbitrarily restrict the number of moral and metaphysical conceptions to which public visibility should be granted. Indeed, they limit disagreement and viable argumentations by allowing public discussions only among those individuals who already share certain principles and assumptions. On the other hand, a better understanding of the character of disagreement seems necessary. Although disagreement is considered an important fact that normative theories need to deal with, its very concept and its normative relevance have not been appropriately analysed yet. To understand whether, and at what costs, less restrictive conceptions of public discourse may allow disagreements, which nowadays are considered intractable but which are fundamental, to re-enter into public discourse, it is necessary to analyse the very concept of disagreement and to provide a more convincing understanding of it. The research project aims at structuring tools apt to adequately conceptualize deep contrasts leading to disagreements which are not resolvable by arguments. Furthermore, it aims at evaluating theoretical and practical solutions –both political and legal – which may be apt to deal with disagreements of this kind.

To understand the concept of disagreement, it is necessary to detect those peculiar features which distinguish it from other concepts, such as those of conflict or moral dilemma. It is indeed frequent to find the concept of disagreement inappropriately used and misunderstood. Accordingly, a preliminary step of the research will be devoted to the conceptual analysis of disagreement, meant to set the boundaries of the concept and to develop a taxonomy of disagreement by identifying its possible different kinds. Under this respect, the theoretical acceptability of certain distinctions present in the literature, for example those of disagreements on the good and disagreement on the right; reasonable and unreasonable disagreements; factual and normative disagreements; moral and political disagreements, is going to be evaluated. Moreover, theoretical tools apt to distinguish among genuine and apparent disagreements, namely disagreements caused by error and disagreements in which all of the participants at dispute argue for opinions based on valid and coherent reasoning, are going to be illustrated. The epistemology of disagreement is going to be considered and analysed in order to define its conditions of possibility and the set of normative criteria apt to regulate it. In this sense, it will be crucial to understand whether a disagreement is a real possibility. Indeed, it may be possible to question whether it is genuinely possible for two individuals, confronted with the same piece of evidence and having the same cognitive and rational capacities, namely the same epistemic virtues, to hold different and contradictory opinions after discussing a certain issue. Moreover, an appropriate understanding of disagreement requires considering metaethical matters. Disagreement is phenomenologically problematic for it concerns two individuals holding different and contradictory opinions who, though recognizing the validity of the other’s reasoning, expect a unique solution to their dispute, namely that one of them should be considered right and the other wrong. If it were not possible to think of a solution to the disagreement, its very meaning would disappear for disagreement would become irrelevant and agreement would seem trivial. Indeed, the phenomenon of disagreement calls for the problem of objectivity, namely that of the right answer and, thus, it concerns the question whether judgments should and may aspire to objectivity. In this sense, the project will question those metaethical conceptions apt to offer an appropriate understanding of the fact of disagreement. In particular, the focus will be on realist, constructivist and expressivist approaches. They will be considered and compared in order to identify their strengths and weaknesses in explaining the experience of disagreement.

Given the conceptual analysis and the study of the epistemology and metaethics of disagreement, some cases will be considered. On one hand, the project will focus on those disagreements concerning individual well-being which pertain to conflicting conceptions of the good or happy life. On the other, disagreements concerning issues on which there are different and opposite conceptions of life and death are going to be taken into account. Here is the problem related to the public debate about the ruling of life and death and the project will evaluate whether issues of this sort are to be left to individual and voluntary choices, or are to be subjected to public decisions. To grasp this question, it is necessary to understand what is really at stake in such disagreements and what their sources are. About those disagreements concerning individual well-being or the good life, it is important to point out that the flourishing of human beings cannot be understood unless individuals’ development, from early childhood to seniority, is considered. Throughout this process, human beings become individuals capable of practical rationality and autonomy and develop dispositions to act appropriately. However, within this growth, they also have to cope with some phases of dependence, as during infancy, a sever illness, or in old age. In such periods of dependence, individuals are vulnerable and in need of assistance. Therefore, a good life is one that has been adequately taken care of when it is necessary, during the different moments of existence, when individuals are not autonomous but dependent on others. However, there is neither agreement on what a good life consists of, nor on which factors are beneficial to the flourishing and development of individuals’ capacities and virtues apt to lead a good life. The project aims at evaluating whether disagreement on these aspects is inevitably irresolvable for it concerns legitimate subjective preference, or whether, on the contrary, it is possible to have a non-subjective foundation for judgments on individual well-being and the good life, referring to a set of primary goods necessary for a life to flourish. To better understand on which issues disagreement can be reconciled and on which it cannot, it will be important to highlight a distinction between those goods which pertain to physiological traits, on which it may be possible to find agreement, and those goods which, on the contrary, are cultural or institutional in character, which seem more controversial and to represent a deeper source of disagreement.

Disagreements concerning different and opposite beliefs about fundamental matters, which express different visions of the world and conceptions of life and death, as well as the boundary between the two, are going to be considered. Disagreements of this kind are more and more relevant and present in contemporary politics and it is important to question whether such presence is either problematic or positive. To answer this question, it is necessary to understand what kinds of belief are in conflict when fundamental issues are at stake. It is helpful to define such beliefs as concerning “first things” and “ultimate things” because presenting them in such terms makes it easier to develop a thesis on their content and on the attitudes of those defending them. A belief on “first” or “ultimate things” refers to convictions as to how it is good or bad to be born, to live and to die, and thus, concerns which practical solutions about a good life and a good death are to be considered desirable or not. The metaphysical content of such beliefs has a qualitative influence on one’s acceptance of reasons for believing. The metaphysical content refers to what is deepest in a vision of the world and produce full commitments which cannot be left behind in favour of other commitments. Metaphysical beliefs are gaining substance and public visibility and refuse to be constrained into the private space of conscience. Moreover, they question the very possibility of privatizing the conscience, making it possible for disputes to become evident and visible. The term “dispute”, as it is intended here, describes a particular kind of disagreement, which is characterized by the absence of a shared conceptual framework and the opposition of two reasons which are put forward to confute one another. Such disagreements are forms of deep contrast that may reach a deadlock, namely a circumstance in which each of the parties’ argument seem equally sounded and incapable of convincing the other of changing opinion. Such circumstance may have different degrees of intractability, in the sense that they may generate different deadlocks, more or less difficult to overcome. From a logical point of view, such disagreements may seem to be rationally never-ending. However, from a normative point of view, it is interesting to highlight the strive of the parties at dispute to achieve a rational solution, as if the deepness of their differences would not impede it. Indeed, in a dispute, which has all the features of an intractable disagreement – for it withstand a solution and cannot be negotiate through shared procedures of mediation – the will to rationally argue persist and the conditions of possibility for the exchange of reasons are secured by the intrinsic value assigned to the norm of truth, intended both as an epistemic standard, according to which it is possible to measure evidence, and as a metaphysical standard, according to which it is possible to assess ontological claims. Keeping in mind the model of the dispute, it will be possible to analyse cases of deep disagreement and evaluate whether the fecundity of a disagreement should be considered only in relation to the possibilities of arriving at a shared conclusion. In the strong opposition of the dispute, the parties try to convince each other of the rightness of their opinions and they are ready to defend them. Indeed, since they need to measure their own opinions in rational discussion, the parties at dispute present their beliefs on “first” and “ultimate things” and in so doing those beliefs become explicit and the deepest assumptions beneath them are compared and measured. In this sense, the potential of metaphysical disputes is evident when legitimate visibility is recognized both to those reasons at stake and to the dynamics of disagreement which guide the discussion and limit it to a normative comparison which is relevant independently of its solution.

The research will also to consider those political and legal strategies for the regulation of political disagreements concerning the justifiability of institutions, laws, and norms, which may cause social conflicts when disagreement is not properly dealt with. In particular, two types of disagreement, often at the heart of contemporary debates in pluralistic societies, are going to be considered. On the one hand, there are those disagreements concerning the regulation by public agencies of norms for the disposal of one’s body, upon the morality of which individuals disagree. On the other, there are those disagreements concerning the role of public agencies in the regulation of economy and distribution of material goods. Disagreements of the first kind refers to controversial moral practices as, for instance, abortion, assisted reproductive technology, surrogate mothers, the alienation of bodily parts and/or products, surgeries to transform one’s body, euthanasia, assisted suicide, and prostitution. Disagreements of the second kind concern, for instance, the justifiability of institutional interventions aimed at promoting business competition and employment, at insuring safety in workplaces and equality of salaries and prizes, at reducing the negative effects of productive activities for individual health and the environment. Disagreements of the second kind concern also the justifiability of taxes and social policies.

Different kinds of political and legal strategies apt to deal with such disagreements are going to be identified and comparatively assessed not only on the basis of their feasibility, but also on the basis of their effects in terms of inclusion and exclusion. A first kind of strategy assumes that political disagreements can be resolved for there is only one correct and identifiable solution to the issue at stake. Those who consider such strategy viable claim for norms which are absolutely valid and that each and every rational person should be able to recognize. The problem with this kind of strategies is that it seems they are not able to provide a shared solution in the face of political disagreements. On the contrary, they seem to make positions more radical and, thus, to turn disagreements into conflicts. It seems that such strategies do not take political disagreement seriously for they do not consider the possibility of not reaching a consensus on a set of criteria and norms apt to drive political decisions.

The project will analyse other strategies which seem more viable and persuasive for they do not propose a solution to disagreement, but only a set of norms to treat it peacefully. The idea is to contain disagreement in order for it not to turn into a conflict. In this category, there are those strategies which grant, in the form of fundamental human rights, spheres of liberty and individual autonomy within which individuals are free to act as they please, without the need to account for their behaviour to others. However, while rights to individual liberty and autonomy have proved successful in preventing disagreements the disposal of one’s body, they seem less apt to in case of distributive disagreements. There are indeed limit and ambiguities in the definition of the category of civil liberties for it includes both right to individual liberty and autonomy and patrimonial rights. There are other strategies that do not advance a resolution to disagreement, but propose terms of peaceful coexistence, by appealing to procedural mechanisms, such as compromise or the rule of majority for the production of decisions binding for all (though always revisable).

Particular attention will be devoted to the idea of compromise, which has been traditionally considered a viable strategy for reconciliation. Indeed, compromise is usually connected to a process of negotiation, by which each of the parties at disagreement concede something for the sake of something else considered of more value. However, the traditional interpretation seems to neglect certain crucial aspects which render the idea of compromise something more than a mere strategic concession. In a compromise, persuasion, reciprocal respect, and favourable dispositions toward mutual concessions are crucial, whereas, in other forms of negotiations, power, threats, and other forms of intimidations are fundamental elements. The parties involved in a compromise are committed to consider others’ arguments and to be in connection with them through various forms of discussion. They are competent and ready to give concession at least to reach the end of the decisional process. The research aims at analysing whether to various forms of disagreement various forms of compromise are to be founded. For example, conflicts and disagreements among non-moral interests equally legitimate and moral principles may bring about different results in terms of compromise. A compromise between fundamental principles in comparison to a general version of clash of interests (as in the classical case of economic interests) may bring one to question whether what is at stake in a moral disagreement is deeper and more important than in the case of disagreements concerning distributive and retributive issues which concern concrete goods apt for distribution. Compromise might also be considered a sort of renounce, conscious and temporary, to the realization of one’s system of values by individuals who hold different and incompatible reasons. Such renounce is to be intended as a way not to damage social cooperation among individuals and to make it possible to open the debate again in the future. In this sense, it is necessary to evaluate whether it is always possible to reach a compromise and, if this is not the case, why. Indeed, the research aims at understanding the conditions which make a compromise possible. Moreover, it will be important to verify whether it is possible to distinguish among moral principles that can be compromised and those which are not. This issue is of particular importance to understand whether It is possible to accept a compromise without jeopardizing one’s moral integrity.

Finally, the research will examine those strategies which assume the inescapability of political disagreement and, thus, are ready to sacrifice the principle of formal legal equality and also the integrity of the political society to insure that each person can live under each one’s system of rules and values. The paradigm of normative pluralism which defends the idea that persons make choices on the basis of different and sometimes conflicting system of rules, including the law of the state, has been proposed as a fact of societies with different cultural groups living within it. That of normative pluralism has also been advanced as a possible solution to the phenomenon of political disagreement. Indeed, normative pluralism presents different models of coexistence among individuals holding different cultural backgrounds and values, which may turn into the form of a unique legal system which recognize to individuals the possibility of choosing different system of norms, and/or to different communities the possibility of self-government. Normative pluralism also recognizes the possibility of an “archipelago” of self-governed communities which coexist on the same territory and regulate their relation on the idea of tolerance. The research aims also at analysing if and how the doctrine of fundamental human rights can fit such a framework of strategies. The question is whether the doctrine of fundamental human rights can be considered a unitary element apt to help the treatment of conflicts (and the solution of disagreements) among norms and principles of different institutional orders.

The theoretical objectives here presented are will be pursued through the organization of a seminar series, which will cover the entire development of the research project. Moreover, conferences on the relevant issues for the project and workshops arranged in cooperation with other groups and those centres of research affiliated with the local group are going to be organized. Furthermore, the publications of articles on Italian and International journals, of a thematic monograph, and of a book, which will comprehend all the contributions of the members of the local research group and the results of the research, will be pursued.

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