Diversity and Tolerance in Socio-Legal Contexts

Explorations in the Semiotics of Law

Vijay K. Bhatia, Anne Wagner

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317149224
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Why is there so much resistance to recent issues of tolerance and diversity? Despite efforts of the international community to encourage open-mindedness, recent attempts at international, political and economic integration have shown that religious, cultural and ethnic tolerance and diversity remain under threat. The contributions in the volume reflect the growing importance of these issues and why resistance is so widespread. Part I addresses the relationship between the language of law and its power, whilst Part II explores the interplay of tolerance and diversity under visual, legislative and interpretative perspectives. This collection as a whole offers a combination of varied perspectives on the analysis, application and exploitation of laws and will be a valuable source of information for those interested in the general area of language and the law.

PART I
The Semiotic Foundation of Diversity and Tolerance

Chapter 1
Tolerance, Pluralism and ‘Fighting Faiths’: Seeking the Sources of US Constitutional Meaning

Frederick P. Lewis

Constitutional meaning

The formal US Constitution contains words and phrases that are associated with the social arrangements that sustain civil tolerance. It grants ‘equal protection of the laws’ and ‘due process of law’ to those whom many may have initially seen as socially unequal. It guarantees ‘free exercise of religion’ and forbids religious ‘establishment’. But these words are broad, vague and extremely general. The meaning of the words, though formally conveyed by the Supreme Court of the United States, has ultimately come from cultural practice; it has arisen from social understandings that have evolved through time as the patterns of inter-group relations have changed.1

As a result of both external immigration and internal migrations (not to mention forced importation of slaves as well as the remnants of native settlement) that occurred both prior to and subsequent to the nation’s founding, people from many different groups have come to constitute US society. Their experiences upon arrival, their interactions with each other, and with the different political, economic and social conditions they encountered at particular historical moments, have shaped their attitudes and, ultimately, the nature of the preponderant social practice of tolerance.

The overall evolution and development of US constitutional doctrine that reached a peak of activity in the middle of the twentieth century can be understood as reflecting and supporting the change in the overall pattern of relationships among politically and culturally significant groupings. This changing pattern, in turn, reflects fundamental alterations in the social and economic context of US life.2 The development and reinterpretation of traditional concepts of civil liberty to accommodate changing inter-group relations in a modern society has been the principal constitutional business of the US Supreme Court during the last half-century. While this process arguably featured some inconsistencies, and there may be specific decisions that are appropriately subject to criticism, the overall effort was an attempt to take the precepts derived from the dynamic set of cultural practices and social understandings that underlie the Constitution and apply them to new realities.

Pluralism: changing patterns of inter-group relations

The patterns of pluralism in the US have changed over time. To continue to preserve tolerance suggests that we try to understand the workings and requirements of these socio-political-legal arrangements and the nature of their long-run evolution.

From the middle of the nineteenth through the middle of the twentieth century a major change occurred in the pattern of group relationships within the US. The change was the consequence of the decline of the preponderantly rural smalltown US and the rise of a modern, cosmopolitan, urban and suburban nation.

The original settlements were composed of people escaping oppression in Europe attracted to the more open North American continent. John Roche (1964, 39, 41) wrote over fifty years ago that the US’s early years were not the ‘golden age’ of freedom that some have claimed and that what diversity existed ‘was a consequence not of tolerance and mutual respect … but of the existence of many communities within the society, each with its own canons of orthodoxy.’

To rephrase this, if an individual made a strenuous effort, he or she could probably find somewhere within the country’s expanse a community that shared his or her own particular political, cultural, religious or other views and, once that person joined that community, he or she could help impose its group beliefs on others: ‘a microcosm to be intolerant with’. Roche argued that in this older nation, ‘while there was no centralized authoritarian state on the European model … the centralized state is not the only institution capable of oppression; the parish can be as severe in its impact on the individual as the centralized variety’ (Roche 1964, 8–9). And ‘the US was notoriously the happy hunting ground of what Reisman has acutely termed “vested heresies”’ (Roche 1964, 8).

From this point of view, in its early period, the US consisted of a ‘number of subcultures living side by side with the geographic expanse of the nation’ rather than one integrated national community (Fischer, 1989, 973). David Hackett Fischer has described what he saw as the four principal regional cultures that constituted colonial North America and dominated in particular geographic areas beginning around 1629. The principal four were the Puritan of Massachusetts, the Cavalier of Virginia, the Quaker of the Delaware Valley, and the backcountry people sometimes referred to as the Scots-Irish who settled in the southern highlands of Appalachia. Fischer holds that these cultures and their folkways were derived from particular areas of England (1989, 783–819).3

As Hacker (1970, 209) wrote, ‘the majority of Americans spent their lives in circumscribed settings which, if not literally feudal, nevertheless forced regimens that tolerated little deviation from established local standards.’ In what was primarily an agrarian and decentralised early republic, freedom was essentially conceived of in communal terms. The freedom offered was the right of a group with shared values to acquire control over a piece of territory and its local government.

The institutions and arrangements created at the time the nation was founded were not designed to present a threat to this understanding. The intent, reflected in the structure of the original Constitution, was to protect local communities from the threat of central tyranny but there was little interest in the tyrannical practices that often existed as a practical matter within each subcultural unit.

The diversity of the nation during this early period was largely manifested in geographic terms. If an individual was not comfortable with the values being imposed through the government of a given area, he or she was theoretically free to move on to a place that was more comfortable. Under certain circumstances, the individual might be able to gather together enough other people who shared his or her views and keep moving together until they found a place to establish their own community.

In his writings, Roche (1964, 29–33) argued that this pattern broke down in the twentieth century, and he attributed its demise to urbanisation, industrialisation, and the rise of elites concerned with civil liberties that ‘infiltrated’ the ever more powerful national government. The result has been to produce a new pattern: a more impersonal society and one characterised by what he described as the ‘bureaucratisation’ of interpersonal and inter-group conflict.

Of course this type of social change has been discussed for decades. In a sense, Roche’s writings add a new aspect to classic works that broadly characterise modern industrial societies as moving from status to contract (Maine 1861) or from Gemeinschaft to Gesellschaft (Tonnies 1887). At this point, we can now see that the newer pattern has not so much displaced the older as overlaid it. The older pattern still exists and periodically continues to offer vigorous resistance to the newer pattern.

People grouped into a series of geographic subcultures, each one sharing intolerant attitudes and possessing direct majority control of the local legal and political machinery, can impose conformity within their own little community even as each community differs somewhat from the others. But a pattern of pluralism of this kind can best prevail in a rural economy and is further facilitated by the relative isolation of a country significantly shielded from aggressive foreign powers by two large oceans. It is less viable when a large degree of economic and political interdependence is required on a national basis.

Industrial and post-industrial societies require people with skills who move to wherever their skills are needed; they will normally live, work and educate themselves in metropolitan areas. Constant subcultural interpenetration is produced by advanced means of transportation and communication, and it becomes increasingly difficult for a subculture to encompass all its members within a finite geographic area as persons affiliated with one subculture spend large amounts of their time with members of other subcultures in activities to which the subcultural affiliation is irrelevant.

Many of the older subcultures survive but they do not normally combine any longer with either economic activity or significant political control. And newer ones gain social influence. James Davison Hunter wrote about the US that

[i]t is out of the changing contours and shifting balance of pluralism that the key actors in the contemporary culture war emerge … After the Second World War, the balance represented in the … consensus was … upset. Among the most important contributing factors has been the further expansion of pluralism (Hunter 1991, 67–72).

The US’s federal system, and its earlier constitutional doctrine, provided structural support for the older pattern and to some extent it still does. Significant subcultural differences still remain and for many people, their subcultural affiliation and identity remain vitally important. Despite the dominant rhetoric of individual rights, in many respects it is a new pattern of inter-group relations that was created in the twentieth century US and reflected in the doctrinal revolution popularly associated with the Warren Court (but which both preceded it and continued for several years after Chief Justice Warren stepped down). Indeed, despite the increase of conservative influence within the Court, that doctrinal revolution has still continued to some extent in recent years. Robert Horn (1956, vii) pointed out ‘[t]he truth is that almost all these First Amendment and due process cases of [the twentieth] century deal with the rights of individuals acting as members of organized religious, political and economic associations’.

The frequent inability of many subcultural groups to obtain satisfactory results from state and local governments, which retain the relevant police powers and often use them to reinforce the older pattern of pluralism, has led these groups to seek Supreme Court intervention to secure their equal rights. Operating, in a sense, as the agent of the evolving newer pattern of inter-group relations, the US Supreme Court has frequently, if imperfectly, used the Fourteenth Amendment to the US Constitution as a vehicle to extend basic liberties to these political, racial and cultural minorities during the middle and later decades of the twentieth century and, to some degree still, in the early years of the twenty-first.

Pluralism, individualism and civil peace4

The new pluralism in society focuses on function and performance. Peter Drucker (1989, 76) once wrote that

… both society and polity in developed countries are now full of power centers that are outside of, and separate from, government. It is a pluralism of single-purpose organizations, each concerned with one social task: wealth creation or schooling or health care or forming the values and habits of the young.

Drucker (1989, Chapter 7) saw these developments as part of a long-term trend where social tasks that 150 years ago were done, if at all, within the family (or perhaps, he might have added, by a rather homogenous local community) are now done in and through organised single-purpose institutions. He noted that the pluralism of today’s institutions is different from that of the past in that it is based on function rather than power.

It might be more accurate to say that these institutions have legitimate power only within their functional area. Thus, for example, people belonging to different subcultural groups work together in the institutions based upon skills they have that are suitable for the function because individual skill, and not subcultural affiliation, is the relevant consideration. Reciprocally, the power of the social and economic institutions Drucker describes is normally not available to support any particular subcultural group. This weakened subcultural group control and the balance among these institutional forces typically allows individual US identities to be constructed from many sources.

Alan Wolfe (1990) has written that citizens of the US have chosen to be ‘modern, not ethnic’. He suggests that we have solved the problem of ethnicity that plagues other nations by transcending it and that groups do not live in peace with each other in the US; individuals do. This is much truth in this though it might be more accurate to say, given that some elements of traditional ethnicity and religion do remain quite powerful, that groups live in peace in the US but that the powerful individualist ethos of US culture, which is responsible for some of the much noted negative aspects of our social, political and economic system, also helps account for our relatively more peaceful inter-group relations. It is also hard not to agree with Wolfe (1990) that the more traditional and classic ethnic arrangements ‘have a way of encouraging their people, when not killing each other over roots, to retreat into that special kind of narrowness and superstition that ethnicity alone can legitimate.’

Kevin Phillips (2006, 105) points out that the US has ‘a superabundance of denominations and sects compared to Europe, as well as a far higher ratio of churchgoers.’ He also claims that Muslims in the US now ‘outnumber Presbyterians or Episcopalians’ and Los Angeles is the most ‘varietal Buddhist city in the world’. Despite the very great religious diversity of the US and the ceremonial religiosity that can often be found in its public sphere, its commitment to church–state separation is arguably more extensive than that of many European countries and that too seems to contribute to peaceful inter-group relations.

The developments that have so changed the US were arguably necessary for the maintenance of political stability. Robert Dahl (1989, 254–60) suggested that in nations where people live their whole lives within a territorial subcultural unit, the potential for explosive conflict between such units is likely to be high.5

The new pattern of pluralism, which diminishes the impact of subcultural affiliation upon the political and economic aspects of life, will also have the effect of diminishing the overall importance of subcultural affiliation for some individuals and concomitantly of reducing the potential for inter-group conflict (Wolfe 1990).6

Within a territorial subcultural unit, in the short run at least according to Robert Putnam, ‘diversity tends to reduce social solidarity and social capital’. The evidence he has accumulated leads him to the conclusion that ‘in ethnically diverse neighborhoods residents of all races tend to “hunker down”. Trust (even of one’s own race) is lower, altruism and community cooperation rarer, friends fewer’ (Putnam 2007, 137).

However, over time, he suggests that new forms of social solidarity develop and ‘dampen the negative effects of diversity by constructing new, more encompassing identities’. Thus the central challenge for modern, diversifying societies is to create a new, broader sense of ‘we’ (Putnam 2007, 138–9).

Tolerance, ‘fighting faiths’ and symbolic reinforcement

Justice Oliver Wendell Holmes wrote famous words that are often cited in defence of libertarian speech approaches:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment (Abrams v. United States, 250 U.S. 616, 630 (1919)).

This quote tells us to tolerate the expression of ideas that we dislike, recognising that our own strongly held beliefs and ideas may be ‘upset’ in the long-run search for ‘truth’. But to tolerate the expression of such ideas by others means we must also tolerate those who express the ideas, despite their ‘otherness’. For different ‘fighting faiths’ to coexist in a political community, in a geographic place, in conditions of social peace at any given moment in time, those who possess them must all accept arrangements fostering this peaceful coexistence and the building of shared practices even though the logic of their own particular systems of intellectual and moral belief may well lead to rejection of the beliefs and behaviours of others, and possibly of the very idea that we should tolerate them.

We all tolerate people with whom we disagree, those who think differently from us, believe differently, look differently, and who in some ways behave differently. We tolerate them, meaning not only that we do not kill them but that we work with them, do business with them,7 socialise with them, live next door to them and occasionally marry them. These arrangements, which derive from conclusions reached both consciously and unconsciously about everyday experience, frequently coexist with intellectual o...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• Figures
• List of Contributors
• The International Dual Nature of Law: Tolerance and Diversity
• Part I The Semiotic Foundation of Diversity and Tolerance
• Part II Case Analyses of Diversity and Tolerance
• Bibliography
• Index