by Abbas Bagwala.
Jordan Peterson is a Canadian clinical psychologist and a professor of psychology at the University of Toronto. He rose to prominence on social media after his controversial interview with Channel 4 News. The cause of his fame was his denial to accept Bill C-16 of the Canadian Parliament. This bill proposed a legislation to add “gender identity or expression” to the “list of prohibited grounds of discrimination in the Canadian Human Rights Act and the list of characteristics of identifiable groups protected from hate propaganda in the Criminal Code”. This meant that in the list of things that people should not be discriminated against, like race and religion, “gender identity or expression” would now be added.
Jordan Peterson claimed that an act of legislation such as one entailed by Bill C-16 is dangerous for free speech. He claimed that (a) legislation on the use of language is a dangerous precedent and that (b) this bill was motivated by radically leftist forces. Now there is debate on whether Peterson’s claims are even factually correct. Did the bill really legislate language? Was it really politically motivated by the left? Whatever the answers to these questions are is not our concern. Our concern is not an analytically political one (because we are not concerned about whether the bill implied what Peterson says it did), but a moral one. We ask the questions then: Can an act of legislation on speech ever be justified? Should it be justified or not justified merely on the basis of ‘rights’? Or should there be more (like affirmative action in favor of a community not merely for the rights but also for the general good, like acceptance, of the community) than only a rights-based criterion to it?
Rawls versus Sandel, and the (non)priority of ‘rights’ over ‘good’
The debate over the priority of rights over what a community values to be good is not a new one. In fact, it is at the heart of debates in moral political philosophy. It is viewed as an extension of the debate between Kant’s deontology and Mill’s utilitarianism. The father of the side that argues that rights ought to be prior to goods (and are, epistemologically speaking, in fact so) is Immanuel Kant. Such a principle is espoused by people who believe that we can find certain principles and rights that may and ought to be applied to all communities irrespective of where and at what point in history they are. Kant’s view is one extreme of the rights-before-good side, substantially made arguably non-transcendental most prominently by Rawls today. Sandel, on the other hand, argues against the priority of rights over good. For Sandel, rights do not and must not necessarily hold priority over any conception of the good. In other words, the right to free speech must not, merely because it is a right, be always exercised. There may be restrictions placed on free speech under ‘deliberative conceptions’. This is an argument against the Rawlsian understanding of ‘liberal public reason’, presented with full force in his Political Liberalism. For Rawls, any religious, moral conceptions of the notion of a good life must be kept away from liberal public discourse because such a thing would imply that one form of the good may or may not take precedence over the others. This would, consequently, violate the rights of people who do not view that particular conception of the good life to be so. For example, in the debate of whether abortion is a morally right thing to do, the sides arguing against each other, under a Rawlsian liberal discourse, must not argue for or against abortion using religious or other moral doctrines. It should be left to the mother of the foetus or the baby to decide whether or not she wants to abort the baby. This is not because it is the morally right thing to do, but because deciding under a public domain whether or not abortion should, in principle, be allowed or not impinges upon the individual rights of the mother.
Sandel argues, on the other hand, that leaving the public discourse devoid of moral or religious forces generates “disenchantment” in the society. He writes about political liberalism: “… its vision of public reason is too spare to contain the moral energies of vital democratic life. It thus creates a moral void that opens the way for the intolerant, the trivial, and other misguided moralisms.”
Sandel’s arguments against political liberalism are based on the idea, among others, that such a condition would place an “unduly severe restriction that would impoverish political discourse and rule out important dimensions of public deliberation”.
Keeping this in mind, we seek to shed more light on Jordan Peterson’s phobia against the deliberative actions by the Canadian parliament in passing Bill C-16.
Jordan Peterson’s phobia and the priority of the rights
Jordan Peterson is a liberal, in that he believes that there should be absolutely no limitations on one’s speech. An individual should be allowed to say whatever she wants to say without any intervention from others whatsoever. This conception of freedom of speech comes from a certain conception of the self. In the liberal’s view, even hate speech would not be harmful to others because an individual’s “dignity consists not in any social roles” but instead in the individual’s “capacity to choose” her roles and identities for herself. No hate speech, thus, “could constitute harm in itself, for, on the liberal view, the highest respect is the self-respect of a self-independent of its aims and attachments”. Thus, unless there is a danger of physical harm, a liberal would oppose any limitation on speech. In the case of the Peterson controversy, the liberals on the side of Peterson argue that the legislation due to Bill C-16 is problematic because it impinges upon the rights of the liberal individual (in this case, the individual’s right to speak freely) by placing restrictions on the individual’s speech. The liberal argument, from the side of the people belonging to trans-gender communities (for instance), would be that such speech ought to be regulated because it impinges on their rights by insulting, harming, or hurting the sentiments of the people belonging to the community upon whom the said speech is operated and, consequently, creates an unwelcoming environment for them. This environment, in return, limits their rights by creating a situation in which they are often denied basic rights like the right to equality under the law. Thus, both sides argue for or against the bill on the basis of the rights the bill takes into consideration.
Arguments from both these sides, however, fall short. Both are fixated only on rights and such a fixation misses an important point about the acceptance of a community by the ‘normal’ public at large.
Section III: Trans-genders need more than just rights to be accepted
Michael Sandel gives the example of two scenarios to show the limitation of a merely rights-based evaluation of a political dilemma. Consider two questions. Should neo-Nazis be allowed the right to march in Skokie, Illinois, a community with large numbers of Holocaust survivors? Should white supremacist groups be allowed to promulgate their racist views? In both these cases, the liberal view would uphold the right to free speech, and the communitarian would oppose the same. Both have a principled view of the two cases. Both are the result of the “non-judgmental impulse liberals and communitarians share”. These, however, argues Sandel, are insufficient ways to determine all possible scenarios. In fact, one has to and ought to rely on moral judgment (that is a judgment that presupposes the conception of a notion of a good life or a good individual) before one can decide to rule in one favor. Sandel gives the example of a judgment passed by Judge Frank Johnson in 1965 that permitted a march for Martin Luther King on the grounds that the wrongs done on the community of people allowed to march far outweigh any problem such a march would create (in this case allowing the march along a public highway, which is not constitutionally allowed). Thus, Judge Johnson made, conclusively, a judgment that had substantive moral ground. In other words, it was not a content-neutral judgment and, Sandel would argue, could not have been. In a liberal political society, such as Canada or the U.S., where rights are to be valued rather than this or that moral conception of the good, a decision either in favor or against Bill C-16 would use the language of rights to justify the final verdict. It may be said that Bill C-16 either protects or attacks the rights of individuals, and thus is accordingly to be tabled. If we assume that Peterson is right in saying that the bill impinges on the individual’s right to free speech (and he is wrong), we may be convinced to drop the bill. But that seems, even common-sensically, a wrong done to the community of transgenders that will be affected because of it. In light of this assumption, then, how are we to argue against the morally repugnant side that values the priority of the right to free speech (in, say, calling a transgender woman male even if she requests to be called a female because of the way she dresses) and in favor of a more sympathetic limitation of speech towards a community that has historically been wronged?
A liberal response would be to show how the speech of a person wanting to call a transgender female a male, for instance, impinges in some way on one of the many other rights of the transgender female in question. A calculus of rights, thus, follows. The morally repugnant side of the debate, still, has to be excused here because it contains within it the notion of a particular kind of ‘good life’, and such a thing is not accepted under a liberal public discourse because it may impinge upon another person’s notion of a ‘good life’. But isn’t the moral force necessary for the acceptance of the trans-genders by the ‘normal’ people at large? While even the passing of Bill C-16 may give rights to a trans-gendered person, any form of acceptance by the society requires direct or indirect deliberate public conversation. This is because while one may accept the way of life one’s neighbor sees fit even if it is the opposite of one’s own way of life, this can only be a tolerance of one’s neighbor and not acceptance. Under a legislative force derived merely out of rights, then, and not out of any kind of public moral discourse, a trans-gender may secure enough rights to be able to buy a house, a car, and a comfortable life, but not enough acceptance to be able to live a good life. This is because acceptance is not only about rights but about reaching a certain point in public discourse through conversational engagement. And engagement is only seldom possible without passionate moral force. A liberal, morally disengaged individual would also be disengaged from public discourse unless it directly concerns only her rights. Thus, while the bill seems to be the right thing to have done, liberal reasoning of merely ‘rights’ for its passage is insufficient in truly understanding, appreciating, and accepting the community it seeks to benefit. Why then should the discussion around the bill be limited merely to the rights of the parties in question and not also the moral forces it entails? The whole controversy around Peterson and Bill C-16 seems to me to be, for reasons mentioned above, a little misplaced. The important point is the not point of rights – of whether the passage of the bill enables or disables certain rights of certain groups, but it is to be able to create a space for more acceptance of individuals with less normal traits, like trans-gendered individuals, in an attempt to make them more ‘normal’. And rights are not enough for that.