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Toleration

Andrew Jason Cohen joins us for a discussion on toleration—what does it mean to be tolerant? What should be tolerated? Are we becoming less tolerant?

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As a society, are we as tolerant as we could be? As we should be?

Andrew Jason Cohen gives his definition of toleration and we discuss the harm principle as elaborated by John Stuart Mill and the implications of various alternatives to it.

Show Notes and Further Reading

Cohen’s 2104 book on the subject, Toleration, part of Polity Press’s “Key Concepts” series.

Transcript

Aaron Ross Powell: Welcome to Free Thoughts from Libertarianism.org and The Cato Institute. I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Ross Powell: Joining us today is Andrew Jason Cohen, Associate Professor of Philosophy at Georgia State University and Visiting Professor of Ethics at the McDonough School of Business at Georgetown. He’s the author of a terrific new book on toleration. So I guess we will start with definitions. What is toleration?

Andrew Jason Cohen: Well, thanks first of all. Thanks for having me and thanks for enjoying the book. I’m glad you read it. So what is toleration? It is – I have three main conditions in the book that I talk about. It has to be principle. That is to say there has to be a good value behind the reason for the toleration and then of course it has to be non-interference and finally, it has to be non-interference with something that you’re actually opposed to. So those are the three basic conditions.

If there isn’t something you’re opposed to, we don’t talk about tolerating. I don’t for example in the normal circumstances tolerate my son. I love him. There’s nothing to oppose. So I’m not tolerating him. In fact, quite the opposite. I try to promote his well-being as much as possible.

If I am tolerating something, say there’s something that I’m not happy with who’s doing things that I think are wrong and I decide not to interfere, it has to be that I’m not interfering for a principled reason. It can’t be for example that I think – if I refrain from interfering with them, that they will do something and end up dying. That wouldn’t be toleration either.

Aaron Ross Powell: I want to dig into all that a bit because it’s one of those looks-simple definitions but there’s a lot of depth. But I quickly – in the beginning of book, you distinguished toleration from tolerance and we often – I think a lot of people use those terms interchangeably. So what’s the difference between those two?

Andrew Jason Cohen: Right. So I do think we use those words interchangeably at certain points and I’m – really, at the end of the day, I’m fine with using the world “tolerance” to mean what I talk about when I talk about toleration. But I think we use tolerance to mean something else as well, something that we don’t use the word “toleration” for, which is you have a tolerant attitude or tolerance could be a virtue or a disposition.

We don’t use toleration that way. So I for simplicity would rather say, look, we already have a different use of the word for tolerance. Let’s leave it alone and let’s just talk about toleration, which is a behavior, right? So behavior and virtues or attitudes are just very different sorts of things.

I considered doing more work on the attitude or the virtue and decided it wasn’t the way I wanted to go and have been pursuing the behavior ever since.

Trevor Burrus: How does toleration work into a political framework? Because it’s an attitudinal thing where you could say it’s not really of political value. But you discussed it in a political context in many ways including bringing in people like John Rawls. It has more than just a day to day [Indiscernible] political value by itself.

Andrew Jason Cohen: Right. No, absolutely. Yeah. I mean here’s the thing though. So there’s a large chapter in the book in which I talk about the arguments or some of the arguments for toleration. I think [Indiscernible] identifies like 28 arguments. In the book I don’t do nearly that many. But there’s something really decidedly odd about arguments for toleration in the year 2015, right? The fact is nobody really questions whether toleration is a value, right? We all think toleration is important and you can look at foreign countries of various sorts in the Middle East or what not and say, “Well, they don’t seem to think it’s important.” But that’s not really right, right? Even people in the Middle East will say, “Yes, toleration is important.” You think it’s important. We think it’s important.

Where we disagree – and this is where the politics comes in is what are the limits of toleration. So if you’re somebody who has a very religious background and you want to protect your children and keep them in your religious group, you might be worried about the great Satan that is the US tempting your children away.

Then for them, for people that think like that, that is a limit to toleration and they might be willing to use state mechanisms to prevent it. I don’t happen to think that’s the right view obviously. So I think the real questions that we’re dealing with in the 21st century and really for a large part of the 20th century as well, the real question isn’t, “Is toleration a value?” We already know it is.

The real question is, “What is the extent of toleration? What are the limits of it?” That’s where the political stuff comes in.

Aaron Ross Powell: Well, that’s one of the things that potentially makes toleration a bit odd because if it’s a value or if it’s – I mean even if – it’s a virtue. We tend to think of it that way. But as you said, your definition needs a principle – you need to disagree with what someone is doing. You need to not like it in order to tolerate it.

So if your – does that mean the most virtuous person from the standpoint of possessing toleration is the person who doesn’t like anything that anyone else does? If you’re the kind of person who – it doesn’t bother me. I’m just well-adjusted to a multicultural society or whatever, then you somehow can’t practice this for …

Trevor Burrus: I think this is a good question for you because you don’t like so many things. So you must be really tolerant. You don’t like Jets fans and you don’t like so much music and you don’t like guys who wear shorts.

Aaron Ross Powell: Yeah, and I’m profoundly a virtuous person.

Trevor Burrus: Exactly. It makes you more virtuous than more things you dislike.

Andrew Jason Cohen: There’s something totally right about this actually. I’m not the first person to say this. You see this in the literature on toleration in the 1980s, the 1990s, et cetera. People often talk for one reason or another about the Dutch as being unable to tolerate anything. Not because they want to interfere all the time but because they’re so tolerant by attitude, that they have nothing to tolerate. That is to say nothing bothers them. They don’t oppose anything. So there’s nothing for them to – on principle, refrain from interfering with.

Trevor Burrus: That reminds me of – a little bit later in your book but it kind of reminds me of a – one of the general arguments you put forward of toleration which is the skepticism relativism, which seems to kind of go into that, which is – which you reject as a bad argument. But everyone is like, “Oh man, like everything is true. Everything is cool and everyone has their own world view.” That’s not toleration though, correct?

Andrew Jason Cohen: I think that’s right. I think – I mean I’m not 100 percent certain to be fair about the skepticism issue. I’ve been working on some stuff and reading some stuff recently and I’m sort of getting persuaded that skepticism itself may be a value that can allow for toleration in some cases. But I’m not certain about that.

But the relativism stuff on the other hand, that’s just clear, right? I think that this is a mentality that you see very frequently on college campuses and the broader culture unfortunately where you think, “Who am I to judge, right? I’m not the one that gets to decide if this is a good thing or a bad thing. So I can’t judge if it’s good or bad. So I can’t tolerate it.”

The fact is, if you think that way, then the most you can say is, “Well, I’m going to refrain from interfering.” But if somebody else wants to interfere, you’ve got nothing to say back to them because after all, you don’t believe anything on principle. You don’t have any values to endorse. So you can’t use any of those values or any of those principles to argue against somebody.

You can try to persuade them on a motive basis I suppose but if they are just not persuaded, if they have very different emotional reactions to things, so be it.

Trevor Burrus: Or if they want to interfere with your toleration, you have nothing to …

[Crosstalk]

Trevor Burrus: … principally resist with. I think toleration is pretty cool but there’s no principle behind it.

Andrew Jason Cohen: Right.

Aaron Ross Powell: What does principled mean in this case? Like my – if I disagree with something you’re doing, I can presumably disagree for principled reasons, in which case I can tolerate what you’re doing and I could disagree for non-principled reasons, in which case …

[Crosstalk]

Andrew Jason Cohen: Yeah. So the opposition on my view anyway – and there’s debate about this in the literature – there are some people I think that the opposition that you have has to be moral opposition and that if you’re not morally opposed to the thing, you can tolerate it. Merely disliking it for aesthetic reasons or something else is not enough.

Trevor Burrus: I think you do tolerate Jets fans because he’s morally opposed to them.

Andrew Jason Cohen: Well, maybe you could tolerate them even if you were just having aesthetic preference. I don’t know what it would be aesthetically about Jets fans that you didn’t like but if there was something about them aesthetically that you didn’t like …

Aaron Ross Powell: If we had time, I could go through them.

Andrew Jason Cohen: But in my view, yeah, it doesn’t have to be moral opposition. What has to be principled is the reason for refraining from interfering, not the reason that you’re opposing it in the first place.

Trevor Burrus: Let’s get into some of those parameters. I think we’ve sort of established that it’s – the extent and the reasons of your toleration and what you tolerate. So we have a liberal society as you mentioned. Saudi Arabia or Iran, they tolerate people. They just have different definitions of what is tolerable, what can be tolerated.

Andrew Jason Cohen: Exactly. Like different limits.

Trevor Burrus: So your main limit comes in with the harm principle.

Andrew Jason Cohen: Correct.

Trevor Burrus: Can we talk a little bit about what that is and who originated it and …

Andrew Jason Cohen: Sure, sure. So the principle is actually older than I even suggest in the book. You guys probably know this. Of course John Locke talked about something very similar. But John Stuart Mill gave us this really nice, clear – that’s an overstatement I suppose, but a nice statement about the harm principle. He says basically the only reason in a civilized society that we should be interfering with people is if they’re doing harm to others. That’s it. Nothing else.

The reason why I hesitated in saying it was overstating the case about saying it’s clear of course is because it’s entirely unclear what it means to talk about harming people and this requires a lot of work and Joel Feinberg in the 1980s – sorry – did the most work I think on clarifying what must be meant by harm in the harm principle. There are people today that disagree with him and think he has got it wrong and that Mill would endorse this.

So ultimately for me, although I love Mill and I think he has got a lot of stuff right, I also [0:10:00] think he gets a lot of things wrong and I don’t need to worry about whether or not I’m a Millian in the perfect sense, right? I think the harm principle is the thing to endorse and so it means you can only interfere with a person rightfully if they’ve harmed somebody else where harming somebody else means they have wrongfully set back those person’s interests.

Trevor Burrus: This sounds like a principle of political – or something a libertarian would say. This is what limits justified state action for example. But we were calling it toleration.

Andrew Jason Cohen: Right.

Trevor Burrus: Are they a similar type of question?

Andrew Jason Cohen: Very similar. I would think the toleration question is broader. So it doesn’t only apply to the state. It’s not only a political thing. It’s a matter of personal morality as well as political morality. If there’s somebody walking down my street playing Justin Bieber on a radio and they’re not wearing headphones, so I can hear this horrible music, I think I have to tolerate it. I certainly don’t think the government should be interfering, right?

If I got on the phone and said, “Come police. They’re playing Justin Bieber outside and we all know how terrible that is,” I don’t think the police should be interfering. But I also don’t think it’s for me to interfere either and that’s not a political issue. It’s just personal morality. So I think the toleration question is broader.

Aaron Ross Powell: It feels like the term wrongfully is doing a lot of work here because you can – I mean most everybody could agree with what you’re saying and then the disagreement comes down to whether – I think you – here you distinguished hurt from harm and so a hurt is not – a harm is a wrongful hurt, if I remember correctly.

Andrew Jason Cohen: Exactly right.

Aaron Ross Powell: And so the Iranians might say, “Look, we’re tolerating everything we’re supposed to be tolerating. But these behaviors are actually wrongful and you might disagree.” So we need like another level of moral theorizing about what’s wrong before we can get to questions of what’s toleration and what we should tolerate.

Andrew Jason Cohen: I think for the difficult questions, that’s right. I don’t think there’s anyway around that. I think there are a lot of things where we all know where somebody has wrongfully set back another person’s interests. So it’s fairly quick and fairly easy. I can’t come over and smack you across the face, right? You have an interest in not being smacked and if [Indiscernible] some sort of prior agreement, it’s wrong for me to do it. Nobody is going to disagree about that.

It’s wrong for me to take the money out of your wallet, right? It would set back your interest. Again, nobody is going to disagree about that. It’s not – I don’t wrongfully set back anybody’s interests if I go outside and I give a beggar a dollar, right? So those aren’t sorts of – those aren’t harms.

But there are going to be difficult cases and in those difficult cases, yeah, absolutely. I think we’re going to have to do a lot of work to figure out if there’s a harm there or not.

Trevor Burrus: You talked about in the example – I think it was a Feinberg example of people having sex on a bus, doing other grotesque things and analyzing that in the harm principle. How can we – can we prohibit that? Can we – can we tolerate it? Can we prohibit it or should we prohibit it and not tolerate it …

Andrew Jason Cohen: Right. I think my own view is we can prohibit it in certain ways. That is to say – so the example – maybe you didn’t want to fill out the whole thing.

Trevor Burrus: It includes other bodily fluids and coprophilia ‎ and things like this.

Andrew Jason Cohen: Right.

Aaron Ross Powell: We will mark the page numbers.

Andrew Jason Cohen: Exactly.

Trevor Burrus: Think of the aristocrats pretty much. That’s what I was thinking when I was reading. They’re the aristocrats, if anyone knows that joke.

Andrew Jason Cohen: That’s not the connection I was making but yeah. So if it’s going to do something that’s going to increase the probability that future riders of the bus are going to get sick. Then I think it’s obvious that it can set back people’s interests in the future. People have an interest in not getting sick. It seems like you’re doing things that are going to make them sick. It’s probably wrongful. So we can prohibit that.

But can we prohibit the acts entirely? I think no, right? If you can – I talk about this in the book. If you can rent a bus and the bus company agrees to allow you to do it and the bus company says, “I’m going to take responsibility and make sure the bus is clean, so future riders don’t get sick,” I don’t see any reason why we should be interfering.

Aaron Ross Powell: So the not get sick is – you might be causing a physical hurt or harm to future people. But is there such thing as mental harm? Because I mean the reason – one of the reasons we care about physical harms is that physical harms or physical hurt, it undermines our quality of life in a dramatic way and – but the same could be said for certain degrees of mental anguish.

Andrew Jason Cohen: Right.

Aaron Ross Powell: So if seeing what these people are doing on the bus causes post-traumatic stress or something, then it seems like we can’t just – we can’t arbitrarily say, “Well, the physical is OK. The mental is not.”

Andrew Jason Cohen: Yeah. So there are a lot of people that worry that we should not be extending harm to talk about mental or emotional harm. I don’t have that worry frankly. I think it’s right. If somebody – if you get on a bus and you’re riding downtown or you’re riding across town or something and two people get on and have this coprophagic sexual picnic on the bus, you may well suffer mental anguish and I think it’s actually fairly predictable that the person/s committing this act know that somebody on the bus is going to have some sort of emotional distress. I think it is wrongful for them to do it. I don’t see any reason not to interfere in those cases.

That’s not to say that we should always interfere just because somebody suffers some sort of mental anguish. But the case here is somebody is getting on the bus and they’re doing something that there’s an easily predictable outcome of other people on the bus suffering. That strikes me as – yeah, there probably is a mental harm or an emotional harm. So we can in fact interfere. That’s very different from say banning homosexual marriage just because – I use the example in the book. I don’t remember the name of the character there.

Aunt Jeannie gets upset when she knows that there are gay people getting married. She suffers mental anguish. Very different sort of case because in that case, the gay people aren’t doing anything to Aunt Jeannie whereas on the bus, the people getting on the bus and doing these acts are doing something to the people that were already on the bus.

Aaron Ross Powell: Does the existence of potential mental anguish, mental harms create something of a feedback loop where the – if the society is not very tolerant to begin with, then we don’t have much experience in toleration and so seeing these …

[Crosstalk]

Aaron Ross Powell: Yeah, the anguish might be more acute. I’m thinking of like – so these kids on college campuses with the micro aggressions and all of that which – to those of us who grew up in a world where you – you know, just dealt with offenses, were used to and so that stuff doesn’t bother us. But if you’re one of these protected kids, it might be genuine anguish that you’re feeling, that those safe zones might be necessary to prevent catastrophe and probably overstating it.

But the experiencing of tolerating limits the amount of mental anguish you feel and so then it becomes less necessary to tolerate it and the other way around.

Andrew Jason Cohen: Well, I think everything you said is right. I mean if you live in a society that’s not very tolerating, then you’re not going to be exposed to very much. So it’s more likely that you’re going to suffer anguish when you are suddenly exposed to these sorts of things.

But still there’s a question there as to whether or not anybody is doing anything to you, right? So it’s not enough that your interests are set back. It’s not even enough that your interests are set back when somebody does something wrongful. It has to be that they’re doing them wrong to you that sets back your interests, right?

So you’re, I don’t know, seeing somebody with the lady exposing her ankles. She’s not exposing her ankles to you, right? She’s not doing it to bring about some sort of anguish with you. So you can’t claim that she has harmed you. So there’s no reason for interference there, in the same way that Aunt Jeannie can’t say that we should disallow homosexual marriage just because she gets upset by it, because when homosexuals get married, they’re not doing anything to Aunt Jeannie.

Aaron Ross Powell: How do we distinguish that though? I mean the people having sex on the bus, they could be getting on there – they have no interest in you. They don’t care if you see it or not. They’re certainly not intentionally trying to cause you mental anguish and you could also – I mean presumably you could say like people could engage in behaviors behind closed doors that they’re doing because they know it’s illicit and it’s the kind of thing that would make people upset and that they’re – people know this stuff is happening even if they can’t see it.

It seems like you’re – the difference between the homosexual sex in a bedroom and the sex on the bus lets – and bracketing the issue of the morality of homosexual behavior is the existence of like photons between the act and the [Indiscernible]. But that doesn’t seem – I mean we can imagine like people doing really horrific things behind closed doors that we could rise …

[Crosstalk]

Aaron Ross Powell: … we find out about.

Trevor Burrus: What if there was a homosexual back when Jerry Falwell was still alive and there was a homosexual couple who decided to have homosexual sex in private, but with the intent of making Jerry Falwell very upset or telling him about it later?

Andrew Jason Cohen: Yeah. So first of all, yes, I actually think this is a very difficult question. I don’t want to deny that. At the same time, I think that there are reasonable answers for these things. I think we should be concerned about reasonable expectations and I think if somebody gets on the bus and starts having this [0:20:00] mad coprophagic sex picnic on the bus, they should …

Trevor Burrus: That will be the title of this podcast, Mad Coprophagic Sex Picnic, and my new rock album coming out.

Andrew Jason Cohen: Probably would be a great name for a rock album. But look, I think if you get on the bus planning to do that, you have to know that if there are other people on the bus, some of them might be upset about it. You are in fact doing something that will cause them to get upset.

I don’t see any reason why we should be obnoxious in that way. We should recognize that other people have feelings and we shouldn’t try to get them upset. If you’re doing something like that, wait until you get home and go do it in your own bedroom.

Aaron Ross Powell: Well, but would that mean that the harm principle – and maybe this question carries more weight say 20 years ago, that the harm principle would have prohibited say pride parades?

Andrew Jason Cohen: Interesting question. Yeah. I mean I am inclined to think for example that Nazis marching in Skokie knew what they were doing and they were doing something that was going to cause harm to people that live there. So that that should in fact – that it’s reasonable to interfere in those cases.

I’m not sure. I guess I would like to think pride parades would be different, but 20, 30 years ago, maybe they wouldn’t have been different. Maybe that does add an element of conservatism that would worry me a little bit given that I opposed the moral legalism as you know.

Trevor Burrus: Well, the mental anguish thing seems difficult. I can – I think I agree with you but at the same time, since you’re the only – under most circumstances, you’re the only observer of your mental states. It does give you some sort of interesting hecklers by just simply claiming your own anguish.

Also if you think about the psychologization, the DSM-5, and now everything is a disorder, so now you – if they put in the DSM-5, then maybe that would give you good enough reason to ban it or not tolerate it because you would suddenly have I-saw-a-woman’s-ankles-on-TV-itis and that’s now in the DSM-5.

Andrew Jason Cohen: Yeah, I think – so take a gay pride parade 30 or 40 years ago. I guess I still think I have a way out of this. I think it’s – unless the people marching in the parade are really doing it because they want to annoy certain people and really want to cause those people anguish, i.e. they want to harm those people, there’s still not going to be reason to interference. Now you worry about having your own claim that you can just look into your own mind and say, “Yeah, I’m feeling mental anguish. You’re causing it. Therefore I can interfere.”

I think that’s a mistake as well and here is where – you could put it in one of two ways. You could say either doing the philosophy matters or you can say doing it through a judiciary matters, right? It’s not just that you can claim that something harms you, right?

People can claim to be harmed out the wazoo and sometimes they’re truthful and correct and sometimes they’re just wrong. We have to recognize that. So as a philosopher, what I want to say is it’s not that you simply claim to be harmed. It’s that you are in fact harmed. That might sometimes be hard to tell but we have to make the distinction.

In fact when we talk about this in court cases, courts are often at times at pains to try to figure out if there’s a genuine harm or not. So I don’t think this is something that’s merely limited to philosophers. I think we do this in courts all the time and I think we would have to do it in the sorts of cases that you’re thinking about where somebody wants to claim to be harmed and the rest of us look and say, “No, come on. That’s not really harm.”

In fact Feinberg himself talked about a case. I can’t remember if I brought this up in the book or not. Somebody who is so weak and frail that if you sneeze, they fall down.

Trevor Burrus: We call that eggshell plaintiffs in law.

Andrew Jason Cohen: Yeah. We don’t say that we have a right to interfere with people who accidentally because they didn’t know about this caused the person to fall down.

Aaron Ross Powell: Talking about people taking defensive actions leads I mean into – you’ve got this section of this book where you outline alternatives to the harm principle, alternative ways to talk about the principle behind toleration and the first of this. I mean we can just go through those because they’re pretty interesting. The first of those is the offense principle. So how does that one …

Andrew Jason Cohen: So the basic idea behind the offense principle which of course I reject is that anything that is offensive is possibly something that can be interfered with. Typically people that want to endorse this don’t actually take that broader view. They say there have to be certain sorts of offenses. They have to be the sorts of offenses that you can’t get away from. They have to be very intense. They have to be long-lived. It’s another one that people talk about.

For me, no offense by itself is enough to actually warrant interference. However, there are some offenses that like the coprophagic sex picnic on the bus rise above being merely offensive, right? Because they can actually cause harm, whether it be mental distress or physical illness at the sight of what’s going on.

That actually rises to the level of harm. Trick is then though that it’s not the offense principle any longer that’s doing the work. It’s now the harm principle, right? So for me, if it’s a merely offensive thing, it’s not going to warrant interference. If it rises to the level of harm, then it may well warrant interference.

Trevor Burrus: What about harming the fabric of society, harming our good values, that kind of thing or even on a – I guess a follow-up there. What about the harm of a wrathful god who may smite us in Sodom and Gomorrah style if we allow for homosexual behavior?

Andrew Jason Cohen: OK. So I think those are actually two very different questions. I think – so let me take the latter one first. It could be a rather remarkable thing if I could harm God.

Trevor Burrus: Yes, but he could harm us. That’s why we don’t – I would say the argument that we don’t tolerate homosexuality because God – because of Katrina, that kind of thing. He’s going to smite us.

Andrew Jason Cohen: So you might have sort of a background principle behind the offense principle and say the reason why we limit offenses, the reason why we interfere when people do things offensively is because we want to prevent God from being so upset with us.

Trevor Burrus: Yes. Now if you’re right about that, that would be some sort of violation of the harm principle. That’s something …

Andrew Jason Cohen: Right. So if God would actually respond in a harmful way, so – was it Pat Robinson who said something like 9/11 was a response to gay marriage or some of these crazy claims? Or Katrina was a response to who knows what.

Trevor Burrus: New Orleans’ sinfulness.

Andrew Jason Cohen: Yeah. So …

Trevor Burrus: I think it was Christopher Hitchens. So that was Jerry Falwell who said the thing about New Orleans and it was Christopher Hitchens who said if you gave that guy an enema, you could have buried him in a matchbox. My all-time favorite kitchen slide. But anyway …

Andrew Jason Cohen: So two things. One, if in fact there would be an end result of harm from the action, that would I think at least warrant consideration for interference. I should say importantly – I’ve been saying it might warrant interference. Having a harm doesn’t say you should in fact interfere, right? It says interference is permissible at that point.

But then you have to figure out if all things considered, interference is the way to go. I think that’s very important to recognize. It’s not that we’re saying every time there’s a harm there must be interference. Rather it’s that if there’s a harm, now we ask given everything else that we know, “Should we interfere?”

So going back to the offense principle and offending God so that he then comes out and his wrath harms us, I still think this is a very weird picture of God, right?

Trevor Burrus: I would agree, yeah.

Andrew Jason Cohen: You have a god now who gets upset with some people who are doing things offensively and then turns around and harms everybody else. I’m inclined to think …

Trevor Burrus: He needs to read your book. That god would need to read your book.

Andrew Jason Cohen: Yeah, I’m inclined to think that would not be a god at all, right? I think – I’m at Georgetown for the semester. I think good Catholic theology would say that’s not what God is.

Trevor Burrus: Now, what about societal harm though?

Andrew Jason Cohen: Societal harm, that’s a different question and I think – I talk about this in the moral – in the legal moralism section. So the legal moralists, there are some things that are immoral whether or not they cause harm, such that we should interfere and there are different versions of the legal moralist principle. One of those is, well, really what’s going on when you do something immorally is you’re tearing at the fabric of society. This is Patrick Devlin’s way of talking about it, famed jurist from earlier in the 20th century.

I have to say I mean these things leave me utterly without any sort of desire to respond. The fabric of society, I don’t even know what that means, right? I just thought – I look at it and I think fabric of society. I’m not sure what it means but I’m not sure if it meant anything – what would be needed to see it, right? So people have said things like this about pornography. Pornography tears at the fabric of society.

I don’t know if this is true anymore but a few years ago, the porn industry was bigger than Hollywood. So if it was going to tear at the fabric of society, whatever that means, it should have done so already. Now some people will say, “Well, in fact it has and that’s why society is so bad right now.”

Now we’re in an empirical question. Is society that bad that it has been harmed? More importantly for me, I just don’t think society is the sort of thing that can be harmed in the first place. I think in that regard, the metaphor of tearing fabric is actually quite useful because you [0:30:00] can’t harm fabric, right?

So you’ve got these backdrops here when you do video and there’s no way that these backdrops can be harmed. They can be torn. They can be ripped. They can be painted on. They can be any number of other things that might make them useless to you, but they themselves can’t be harmed. If you are the owner of these backdrops, then you can be harmed if I tear them, right? Because you’re losing your interest in the backdrop or the financial interest in the backdrop is being set back.

But the fabric itself has no interests. So it can’t have interests set back wrongfully rather. I think society is exactly like that. It has no interests. Society is a collection of individuals. It’s the individuals who have interests. They may have similar interests. They may have overlapping interests. In some cases, they may all – everybody in the society may share a particular interest but it’s those people that can be harmed, not society as a whole.

Aaron Ross Powell: Maybe I can ask Trevor’s question about harm to society in a slightly different way, which is – so looking at the kinds of things that when people are talking about – on campuses, when they – we shouldn’t allow certain kinds of speech. The argument there is there are groups of – who are traditionally marginalized, who are historically victimized in some way and by engaging in offensive behavior, making racist or sexist jokes say, what you’re doing is contributing to an atmosphere that – or an environment that then in turn serves to either keep those people marginalized or to maintain their victim status or to harm them because of their marginalized status that it’s an environment which they can’t thrive.

So you’re not directly harming a particular person but your behavior in some small way, there’s an emergent factor of it that is this environment that is then ultimately harmful.

Andrew Jason Cohen: Yeah. So maybe this will surprise you but I actually think most of what you said is actually right and I know it wasn’t your voice. You were talking about one of the people who want to say. But actually I think most of that is right. I would put it a little bit differently. I think first of all, if you allow students in a particular college to, I don’t know, put up racist or sexist signs – there’s one recently where these kids in a frat put up a sign about drop off your daughter here and leave your wife as well or something.

That really does strike me to set up a bad environment, an environment such that the female students arriving will not feel comfortable and won’t be able to learn and so their interests will in fact be set back. I think the obnoxiousness is probably wrongful as well.

We don’t have to worry about all these little micro aggressions to get to that point. I think we should agree that those things are just things that we can in fact rule out of a college campus and I think there’s a bigger reason perhaps that we can rule this out of a college campus which is we know there’s good empirical evidence that people – that colleges do better and college graduates learn more from having people with different backgrounds. There are plain and simple reasons for this. If we don’t allow those people from different backgrounds to participate in the dialogues that go on on the college campus because we shut them down with this sort of language, then we’re hurting ourselves as well.

So I think colleges in some sense should in fact be a safe environment for people of all walks of life to come together and discuss things. I think we have to be careful about setting up an environment where people can participate fully without feeling like they are being treated differently or something like that.

Trevor Burrus: How do you draw a line between that …

Andrew Jason Cohen: And that’s going to be hard, right? So what I was going to continue to say is I don’t know how to draw that line. I mean I think we do sometimes go way too far. But I think we go too far for all sorts of reasons and some of those reasons have to do with the sorts of rules that we’ve put in place.

Aaron Ross Powell: Let’s – because I want to get through all of these – I want to get through all of these alternatives. So I guess I will spur us along to the benefit to others principle.

Andrew Jason Cohen: Yeah. So benefit to others principle is basically the view that if we can benefit certain others, we can interfere with you, right? So the benefit that comes doesn’t have to come to you when we interfere with you. So I mean this is a non-standard way of talking to be fair, but I think this is – it gets to the point – it gets to the point of what people that want redistribution in society are doing. They want to allow taxation, interference with the people that pay the taxes in order to better everybody else. That seems like a way that most people in our society are quite willing to engage in interference, even if they don’t talk about it in those terms.

Most people don’t sit there and say taxation is a huge interference. They certainly don’t think about it as a physical interference I think even though essentially it is, right? You’re removing their ability to spend their money as they see fit. Again, I don’t think that that’s the right way to go and I think here, the economics is really important. I think if we continuously interfere with people in order to provide benefits to others, we actually lower the degree of economic program and so I think that’s a bad way to go for that reason alone.

But I think on more principles grounds, once you open up this door to say we have to benefit others or that benefiting others is a reason for interfering with you, I don’t know where it ends, right? So I have a colleague, not at Georgetown, but I have a colleague who actually does think the fact that somebody walking in a state park stubs their toe on a rock is a good reason for interference and we should raise money and make sure the rocks are cleared away so they can walk without stubbing their toe.

I find this remarkable. Seriously, I mean that’s what you want to interfere with people for? I mean every little thing, you can benefit people in so many different ways that you’re opening up a huge door here. I don’t know how you would shut it, right? So I don’t know how you would stop it from sliding into everything.

Aaron Ross Powell: Are there examples of this principle in action that aren’t taxation? Because taxation looks a little bit odd compared to the other things we’ve been talking about because the other things we’ve been talking about have all been examples of like you want to engage in some action and it is that action, that behavior itself that we find harmful or other principles offensive or whatever else. So we’re going to cut you off and stop you from doing that whereas taxation, especially those of us who aren’t libertarians and so aren’t predisposed to think of taxation as either theft or awfully close to it, tend to see it as more – you’re just giving up a little bit of something but you’re still free to do whatever you want. It doesn’t really seem to fit under the toleration or not toleration analysis.

Andrew Jason Cohen: Right. So I mean there are just – there are lots of different examples. Some of them get a bit confusing to talk about. So for example, I think about helmet laws. We standardly think of helmet laws as justifiable under the legal paternalism, which we haven’t talked about yet. That’s basically the principle that we can interfere with you to prevent you from doing some harm to yourself whereas the benefit to others principle is we can interfere with you in order to benefit somebody else.

So I think we standardly think about helmet laws and the like as matters of legal paternalism. But it’s not always clear that that’s actually the way we should think about it or the way that legislators think about it when the institute does laws. So when you start talking about helmet laws – and I’ve done this in college classes and I’ve seen people say this – it’s not only that they want to protect the people that wouldn’t wear the helmets. It’s that they want to protect the people that come after those people because if you don’t wear a helmet and you get into an accident, things can get really ugly. We want to protect the people that come after you so they don’t have to see that ugliness, right?

So it could be a manner of benefiting those other people that come after you to force you to wear a helmet so that they don’t have to suffer that. So that we can benefit them. I don’t think that works any better than legal paternalism to justify helmet laws. Having said that, I should say wearing helmets is a good thing.

Trevor Burrus: You mentioned earlier too legal morals, because we kind of touched on legal paternalisms as one example for – an alternative. Legal moralism is just the – you mentioned the Devlin kind of – it’s wrong.

Andrew Jason Cohen: The idea is it’s wrong …

[Crosstalk]

Trevor Burrus: Yeah, and that is an example of things we shouldn’t tolerate. You reject that entirely.

Andrew Jason Cohen: Right. Yeah, and again there are different versions of legal moralism. There are some versions of legal moralism that say, look, individuals aren’t harmed but society is. Then there are some people that say, well, individuals aren’t directly harmed but society is harmed. When you harm society, you indirectly harm the people that live in the society. Then there are people that just go moral is all that matters. If there’s something that’s immoral full stop, it doesn’t matter if people are harmed, society is harmed or what not, it’s just immoral. We shouldn’t do this period.

Aaron Ross Powell: On legal moralism, is the critique of it or the rejection of it ultimately about that as we discussed the underlying moral theory that – so is the difference between the reason that you reject moralism simply because you think that the things that they would outlaw under it aren’t really morally wrong because you have a different moral theory than say the moral – the legal moralists or is that your moral theory instead just says that some immoralities we should permit and others we shouldn’t and then give some way to the side between them?

Andrew Jason Cohen: Yeah, it’s the [0:40:00] latter for sure. I will say I doubt that there are any legal moralists with whom I agree with their moral theory. But having said that, there’s a way of thinking about legal moralism in which it’s completely obviously true, which is to say there are some immoral actions that merit interference or that warrant interference. I’m going to agree with that and I’m going to say, “But the immoral actions that warrant interference are only those that cause harm,” right?

So you can think of the harm principle as a particular version of legal moralism. I think it’s the correct version. It’s the only version that we should accept. Most people that we think of as legal moralists like Patrick Devlin and many others, James [Indiscernible], these people are not thinking like that. These people are thinking homosexuality. These people are thinking women’s rights. These people are thinking black and white people getting married. Those are the sorts of things that they worry about.

They’re thinking about pornography. They’re thinking about prostitution. They’re think – et cetera, et cetera, et cetera, like down the list. Those are the things they worry about and I – it’s hard for me to imagine a good moral theory saying that a lot of these things are actually immoral.

That said, I do think that there are clearly immoral things that are not harmful, right? I do think that there are things that are objectively immoral, that are not harmful. Some of those things are things that people disagree with me about. So for example, using an example from John Rawls. I think this is the example I used in the book. The grass blade counter, right?

Somebody who’s – maybe I didn’t use this in the book. Somebody who spends their life and all they want to do with their life is lay out in their backyard and count blades of grass. So they set up a little train out there and they have – they’re well-off so they don’t need to worry about working. They have somebody bring them food on a regular basis and they just stay out in their yard and all they ever do is count the blades of grass. I think this is immoral. I think that person is leading an unethical life. Do I think that we should interfere with them? No. If it was a friend of mine, which is hard to imagine but …

Trevor Burrus: He doesn’t care about friends. He only cares about …

[Crosstalk]

Andrew Jason Cohen: But if somehow I thought this person was worth saving as it were, I would try to convince them not to do this and convince them that they should be doing much more. But actually going further than that and interfering with them, I think no, absolutely not. It’s immoral. They’re actually doing something clearly wrongful but they’re not harming anybody. We don’t interfere.

Trevor Burrus: What about harm to animals and the environment? They’re two different concepts. What about harm to animals?

Andrew Jason Cohen: I think harm to animals is real.

Trevor Burrus: So we should not tolerate dog fight or the Michael Vick dog fighting …

Andrew Jason Cohen: I think at the very least we should recognize that harm to animals like the sorts of cases that you’re thinking about, it definitely allows – it opens the door for not tolerating. It opens the door for interfering. Again though, the harm principle doesn’t say that when there’s a harm, you must interfere. What the harm principle says is if there’s a harm, then it’s reasonable to think that you might interfere. Now the question is, “All things considered, is it worth interfering?”

Trevor Burrus: Yeah, I think you said that a few times and it made me remind me that I want to clarify exactly what you mean by that because you make some good points about like international intervention for example.

Andrew Jason Cohen: Right.

Trevor Burrus: The first thing is permissible but that doesn’t then follow that you do it. So there’s horrible human rights abuses going on overseas, but fighting a war to stop female castration for example could have a huge amount of costs even though we probably shouldn’t tolerate it.

Andrew Jason Cohen: That’s exactly right. So I mean imagine there’s a country in which they practice female infanticide or something like that. Yeah, it seems to me that there’s a harm there. I don’t think there’s any reason to deny that there’s a harm there. Female castration perhaps even more so. Should we interfere? That’s not clear, right?

Is interference permissible according to the harm principle? Yes. But now you have to look at all things considered and imagine whatever country this was had China supporting it. Do we want to go to war with China to do this? I don’t just mean that in a – let’s just get a motive and figure out how we feel about going to war with China. I mean think about the consequences of going to war with a country like China.

Lots of people are going to die, right? Lots of resources are going to be spent. There’s just no question about that. Some of those costs are financial. Some of those costs are moral. We’re going to lose human lives. We’re going to have people suffering. I think that argues clearly against the sort of interference that would be permitted if we weren’t looking at everything and consider it.

Trevor Burrus: We were talking about like animals and situations like this. You say that …

Andrew Jason Cohen: Same sort of thing. Exactly right. So I don’t see why we wouldn’t interfere with the Michael Vick sort of case. On the other hand, there are all sorts of other issues. You see somebody pulling their dog a little too roughly on the street. Is that really going to be worth getting the government involved with – I would – if I saw somebody treating a dog roughly, I would say something to them and try to persuade them that this was not a good way to behave. But am I going to call the police afterwards? Maybe if it gets – if it rises to a certain level of abuse. But earlier on, if it’s just they’re pulling a little tightly, of course I’m not going to call the police for that.

Trevor Burrus: Environmental harm, should we tolerate suburbs and smokestacks and clear cutting forests, those things that should be tolerated?

Andrew Jason Cohen: Interesting grouping there.

Trevor Burrus: Some people think suburbs are a huge problem and over-exceeding our resources and too many rooms in our house and things like that.

Andrew Jason Cohen: Yeah. I mean the fact is again as with society and as with these curtains, the environment is simply something that does not have its own interests. There are people out there …

Trevor Burrus: It probably upsets a lot of your colleagues, I bet.

Aaron Ross Powell: What do you have against Gaia?

Trevor Burrus: Yeah, exactly.

Andrew Jason Cohen: There are some people out there that believe that there’s this Gaia thing that really is this living creature that is the earth.

Trevor Burrus: That was a big sigh.

Andrew Jason Cohen: Yeah. There are certain things you’re just like I don’t know what to say about this. Why would you believe this? What is the possible evidence?

Trevor Burrus: Because they watch too much anime. That’s really why.

Andrew Jason Cohen: Exactly. So I mean I think no, the earth does not have its own interests. The universe does not have its own interests. We have interests in the earth. We have interests perhaps in the universe, but the earth doesn’t have its own interest. The earth is here to be used. If there were no earthlings, if there were no humans, we wouldn’t be using the earth this way, but we are and we have to live. So we have to use what we have available to us. That includes everything on the earth.

I don’t see any reason to think that’s problematic. That said, of course pollution can become problematic, right? Because we need to conserve the resources so that we can continue to live. I want my child – he’s five. I want him to be able to have a good life. If there are no trees left, he’s not going to be able to have a good life, right? We need the trees because we need the oxygen and so we want to protect trees. Does that mean we should never take a tree down? No. Of course not, right? I mean I have neighbors actually who believe this, that you should never cut a tree down.

You tell them the tree is deceased. You tell them you’ve had an arborist look at the tree, three arborists look at the tree, and they all agree the tree needs to come down. They say, “No, no, we can save it.” They don’t know what they’re talking about. This is nonsense, right? The tree doesn’t have interests either in my view. I actually read something recently about – talking about how plants do think, but I think this is nonsense and people are misusing the words.

Trees, the earth don’t have interests. We can’t harm them in the sense that’s relevant to the harm principle. But again, we have interests in having these things around, right? So this is sort of old-fashioned environment conservatism. We want to conserve the environment so that we can continue to survive. Conservationism, sorry, not conservatism.

Aaron Ross Powell: Does toleration itself have value outside of these questions about harm? Is there – so is there something good for me about tolerating your behavior, some reason I should want to cultivate this beyond just not harming you inappropriately?

Andrew Jason Cohen: Well, the straightforward Ricardian economics that says yes, right? I mean the more people you trade with, the better off you’re going to be and the more people you trade with that are different from you, the better off you’re going to be. So for one example, I just took a car over here and I got out and I saw this place down the street called Bolt’s Burger I think. I don’t know what Bolt Burger is yet. But I’m probably going to find out when I leave here.

I like the fact that there are these new sorts of burger joints around town in different places. I like the fact that there are different ethnic foods around town. Like good Chinese food, good Thai food just makes my life much better. If we don’t tolerate people that do these different things, whether it be making a burger a different way – again, I don’t what Bolt Burger does or a different Chinese food or a different type of Thai food or what have you. I would be worse off, right?

So I think if we want to make ourselves better off, we need to tolerate more people. I’ve been taking Uber a lot recently and a lot of the Uber drivers are clearly immigrants and I think that they’ve made my life better, right? So I want to tolerate them, not only because I just think doing harm is a bad thing but because it makes my life better to have these people who are willing to perform these services.

Trevor Burrus: Well, you talked about in the book that – just generally why toleration – why we argue for it generally and you bring up some of the arguments which I think [0:50:00] are talked about more often than like the sort of harm principle thing that you go through systematically of what should be tolerated and what shouldn’t be, but these ideas of like moral muscles for example. What’s the moral muscles argument?

Andrew Jason Cohen: So the moral muscles argument which is also from John Stuart Mill is basically the view that what we are as persons is moral beings capable of reasoning and thinking things through for ourselves. If we don’t tolerate differences, we’re not going to have much incentive to do that. But if we all agree about everything, if we grow up in a particular religious environment or what not, and we never questions it and we never see anybody else questioning it, then we’re just going to accept what our elders have told us and never actually work it through ourselves.

If we don’t work it through ourselves, the very thing that makes us a moral person, the fact that we – the ability to think things through will weaken, will atrophy. If that atrophies, then we cease being persons.

Trevor Burrus: That seems somewhat similar to the St. Augustine argument a little bit, which is more about finding truth I guess, but letting things exist out there so people can think about them and finding – because I think Augustine kind of understood that to find religion, to find true religion, you need to let people get out there and believe.

Andrew Jason Cohen: I think the argument is very different and I think the evidence for it being different is the fact that Augustine ended up rejecting it.

Trevor Burrus: OK.

Andrew Jason Cohen: So Augustine visited an area – I’m not going to remember the name of the area where the Donatists had been living. This was some heretical sect and they had been gone. They were wiped up, right? Some of the remaining people who had been Donatists were now accepting the orthodoxy that he wanted them to accept. So he said, “Well, I guess I was wrong.” That argument that I gave you that said that we have to require – we have to tolerate people so that they will come to religion on their own because you can’t force people into religious views, it turns out it doesn’t work that way empirically speaking. There you go. There are no Donatists left.

I find this hard to believe. I wasn’t alive at the time and I’m not a historian but my guess is a lot of the Donatists were killed and other Donatists just hid their views and then were absorbed into the broader community. I don’t think they’re actually all just gone in the way he thinks – the way he seems to think later on. But still the argument is very different. It’s not about increasing the numbers of people that believe in the right religion. It’s about getting people to think it through on their own.

In fact, I think that Augustine would be quite happy to have people accept religion without thinking it through on their own as long as they were just sincerely attached to the right religious view.

Trevor Burrus: That seems connected to one of the general arguments of conscience and autonomy too.

Andrew Jason Cohen: Right.

Trevor Burrus: How do those arguments work?

Andrew Jason Cohen: Yeah. So a conscience is the older one, right? Autonomy comes about in the enlightenment period and some people that worry about autonomy and want to have tolerations so that we can live autonomous lives, they want us to think things through on our own. They want us to come to autonomous conclusions about the way we should live and what we should believe.

The earlier view which I think was present in Augustine and certainly present in Locke and Spinoza and Pierre Bayle, other thinkers that are important in that time period – the Locke time period, not the Augustine time period. For them, I think it was much more about conscience and much less about autonomy. That is to say they wanted people to be able to lead their lives in ways that they were sincerely able to endorse.

Whether or not they sincerely endorsed them autonomously or they sincerely endorsed them because they never thought it through on their own and they just said, “Well, this is obviously right. Why would we question this.” I don’t think for those arguments, that that matters. The autonomy thing is a little bit different. It takes more works. Arguably, autonomy is a better thing but it’s also more difficult than I think fewer people can live autonomously. I think we like to pretend that everybody can live autonomously but I don’t think that’s true. I do think everybody can live according to their conscience but as [Indiscernible] discusses, there are people in the world that don’t live according to their own conscience. They just do what their religion says and don’t even think about it. There’s no conscience there to really consider.

So both of these I think are important and have some sway in persuading people to abide by toleration. But I don’t think ultimately that they’re enough on their own.

Trevor Burrus: Are we becoming less tolerant? Is that one reason maybe you wrote the book is there’s a lot of campus stuff out there? We’re hearing a lot of stories …

Aaron Ross Powell: Yeah, that was my reaction reading this was this book seems to come out at a time when it’s awfully difficult to be bullish on toleration, looking at the US, looking – I mean the stuff that – well, and then the campus stuff we talked about but also Trump’s campaign and the anti-immigration attitudes that are everywhere. Just it seems like toleration is not winning out.

Andrew Jason Cohen: I think that’s right. But I think that has been right for a long time. So I wouldn’t say it was these sorts of things that encouraged me to write the book. It was rather that I would look out at the world and say people think we’re tolerating in all sorts of ways and they don’t see all these things that were not. They fail to see it. They don’t recognize that having this anti-immigration bias is a matter of failing to tolerate. They don’t see that at all. They don’t see that prohibiting marijuana from being sold legally is failing to tolerate. They don’t see that failing to allow people to lead whatever sort of sexual lifestyle they see fit is failing to tolerate.

I think there was just a lack of awareness about these things and I think there still is a lack of awareness about these things and it may be getting worse. But if the book can help reduce the extent to which it’s getting worse, that’s a good thing.

Aaron Ross Powell: Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more about libertarianism and the ideas that influence it, visit us on the web at www.Libertarianism.org.