Toulmin, Stephen - The Tyranny of Principles

06/11/2010

The Hastings Center Report, Vol 11, No 6 Dec 1981

This article may be dated but is still relevant today. It discusses the phenomenon of mistrust for the government, or specifically for administration and for benefit dispensaries, and also focuses on the traditional divide between equality and equity, which author argues people have begun to see as the same social concept.

Author begins by decrying the level of debate that takes place on matters of public policy, especially the use of hard-lined 'principles' in an effort to combat profligate relativism. Author claims that for many difficult questions, there is a need for case-by-case discussion and a weighing of relative merits. Author especially targets as a problem the 'revival of tyrannical absolutism' (pg31) and tries to trace the social origins of our current legal system. Author believes that they underlie the problems that large, unrelated modern societies face regarding the law as a system of rules. Author first draws on three observations:
1) Author took part in a US Congress task force for determining the ethical treatment of human test subjects in medical research, along with scientists and other moral leaders. He was struck with how much agreement they could reach, yet when asked about the principles that underwrote their conclusions, each member gave different reasons. Conclusion: principles have to do with non-moral commitments.
2) Author notices the abortion debate is usually portrayed in the public sphere as a fight between pro-choice and pro-life principles, without the more 'temperate' approach that these are tough issues which may require compromises and weighing.
3) Author noticed the distribution of social benefits, in this case ones for the poor and needy, have become increasingly bureaucratic and allow for little variation on a case-by-case basis. What seems to be worse is the poor understanding by the public about the alternative to this problem-- the solution suggested by the TV reporter is to create an even deeper system of rules, rather than the (perhaps forgotten?) alternative of allowing for more discretion and judgment in the dispensation. (pg31-2)

Author goes back to the cradle of the rule of law, the Roman civil society. In Rome's first 300 years or so, disputes were handled by pontiffs in an arbitration manner, not administrators in a rule-application manner. This was possible due mostly to the shared culture, tradition, and small-scale aspects of the society. As Rome grew so did the disputes, which was taxing on the pontiffs-- they hired junior ones and charged them with more rule-like guidance. Further conquest and governance of peoples with different traditions and concepts of fairness meant the need to create more rule-like laws. Author considers this the beginning of the separation between equitable results, which may have been reached through pontification, consideration, wisdom and taking the particulars of a case into account, and equal results, which relied on the (semi) uniform application of rules and legal procedures. (pg33)

Author brings out a distinction in settling disputes:

-An Equitable outcome: often done with care and under the assumption of a continuing relationship that should be preserved. Tolstoy (author uses examples from Anna Karenina) considered this the only system of ethics worth having.
-An Equal outcome: used to support the rights of 'strangers' (pg34-5), and exemplified by our current level of rules and regulations in administration. Author also points to the legal concept of the adversarial system, used in procedural justice to come to a fair outcome but can be so psychologically traumatic that afterwards neither party wants to engage the other, and has 'no stake in one another's future' (pg35).

Author does acknowledge the potential for abuse in the 'equitable' system, and also takes some time considering the merits of the large-scale nationalizing of charitable causes like welfare, that used to be instituted primarily by parochial institutions.

Author's theory is that 'a system of law consisting wholly of rules would treat all parties coming before it in the ways appropriate to strangers. By contrast, in legal issues that arise between parties who wish to continue as close associates on an intimate or familiar level, the demands of equality and rule conformity lose their central place.' (pg36)