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Created: July 24, 1999
Latest update: August 23, 2003
Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, August 2003.
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With today's global aspects, we are continually confronted with issues of pluralism. Pluralism embodies difference - differences that characterize the diverse social groupings that form the pluralistic whole. Martha Minow approaches the issues of difference and privileging in Making All the Difference: Inclusion and Exclusion in American Law. She focusses on the dilemma of difference, the conundrum of how to grant special privilege to those with special needs without thereby calling attention to their special needs and exposing them to discrimination. This calls to mind a fundamental issue for analyzing normative expectations in pluralistic settings: are we to deal with difference, or are we to deal with structural inequality? In other words, do we choose to see the problem and the solution in the individual or in the social structure? Martha Minow's work is well and thoroughly documented and offers excellent insight into the complexity of this dilemma.
Minow explores the "sources of difference." She looks theoretically, and with reference to the law, at how we come to define people as different. Her analysis lends itself well to an understanding of pluralism, how to be assimilated to a social, political, economic whole, and yet maintain the essential differences that comprise unique groupings. She analyzes this as an epistemological problem of how we "know" and recognize difference and hypothesizes five underlying assumptions that remain unstated, but act powerfully in the defining of difference. See also: Metatheory and Categorical Thinking . . . Backup.
First Unstated Assumption: "Difference Is Intrinsic, Not a Comparison."
One possible explanation for what Minow means by difference seen as intrinsic is that because we view other people from our own perspective, from a central position within our own experiences, we tend to see them as actually possessing some characteristic quality that renders them different from us. Because our own perspective is so pervasive in our thoughts, we do not recognize that we are assuming they "are" different because we perceive them as different. If we assumed another viewpoint, if we were to recognize other alternatives, we might not perceive them as so different. This would mean that Minow is suggesting that comparison is always at work, even when we fail to recognize the process.
This is of particular importance to Minow, a lawyer, because the law functions by analogy, by understanding the situation as similar or as distinct or different from that which has gone before. Always lawyers and judges look to "precedent," to cases on what has gone before, analogizing (judging similarity or difference from precedent) the facts of the present case to those that have appeared before the courts earlier, keeping decisions within the line of reasoning of precedent. There is an important facet to this: if we follow precedent, then there is a better chance that the law will be impartial, that all will be treated equally before the law. If a policeman standing on a trash can to peer in my living room window is a violation of my privacy in 1984, then precedent will guarantee that it will be a violation of privacy for every other citizen and that the same decision will be given to cover the same facts for each of us in 1996.
Such analogy results from step by step comparison of difference. Lawyers categorize, ask multi-level questions, each of which can be answered by a "fit" or a "no fit" response. In our example above: Is the policeman in a place he has a right to be? My trash can? On top of? Nooo. Would he have a right to be there if he wasn't on top of the trash can? Was it on my property, where I would not expect anyone to walk up? Yes. And then no to the previous question, no right to be there even if not on top of trash can. If the policeman is in place on my property with no right to be there, is it violation of privacy? Yes.
Note how we follow the reasoning by categorizing each step. Minow's concern is that these are not purely yes or no questions. There might be differing contexts in which his being on my property might not seem so egregious as in other contexts. What if he had climbed on a rock that just happened to be under my window? What if my window were only a foot from the sidewalk? What if it were only a few inches from the sidewalk? What if he had climbed on a step ladder? What if the step ladder were just standing there? What if he fetched a step ladder from behind my house? What if he brought the step ladder with him? This is the process lawyers use in deciding how to answer the categorical questions. But once they are answered we tend to forget that they occur within a context. And that we choose the questions from the perspective of our own context.
As Minow suggests analogizing in this way, categorizing is a basic process of reasoning in our attempt to bring order to our world. We need to be able to decide whether this is a table or a chair. We need to recognize the difference between teacher and student. Or do we? Minow would say that there is a basic unstated assumption here that teachers are different from students and that difference resides in the individuals. But if we allowed students to share fully in the cognitive process then perhaps we would not see the same differences. Perhaps we would discover other meanings for the labels "teacher" and "student." Teachers are very different from students if we are referring to the extent to which one has internalized an extensive database of information. The student predictably knows less well that database of information, not having studied as intensively as has the qualified teacher. But if we look to the creative application of bits of knowledge from that database, a bright student may not be so different from a qualified teacher. The difference lies in the basis for comparison. Minow argues that the comparison aspect needs to be brought to consciousness and acknowledged. Only by doing so can we begin to search for other comparisons in which difference might not appear to be so different.
John Wisdom, a philosopher, expresses concern over our perceptions of similarity and difference also. "[P]hilosophical statements mislead when by the use of like expressions for different cases, they suggest likenesses which do not exist, and by the use of different expressions for like cases, they conceal likenesses which do exist." (Wisdom, "Philosophical Perplexity," in Rorty, The Linguistic Turn, 1992, p. 104) Language, particularly, leads us to draw inferences of similarity and difference. Philosophers remind us that we should preface such inferences, indeed most statements, with "probably," yet as Wisdom and Wittgenstein point out, to continuously preface our statements with what even may be appropriate scholarly humility, is, like the crying of "wolf," to desensitize people to the importance of that humility. Probably and perspective do underlie much of modern democratic society. But so do truth, beauty, and justice. It is appropriate that the philosophers and the sociologists remind us of pluralism. It is also appropriate that we be moved to action in creating the social community the philosophers and sociologists will continue to try to describe.
Second Unstated Assumption: "The Norm Need Not Be Stated"
The problem Minow brings forward when she notes the unstated assumption that the norm does not require statement is that we all have assumptions and expectations about normative behavior. We know the rules, even though they are for the most part unstated. One of the rules is that the teacher stands in front of the class and lectures while the students listen and take notes. We don't say that, but people like Dinesh D'Souza use that as an indicator of proper teaching. In one instance of criticism of liberal feminist teachers D'Souza includes sitting on the desk as an empirical indicator of liberal erosion of good teaching. He would probably view it as confusing if the teacher spoke from the rear of the classroom. These are the everyday expectations and norms that everybody knows, but no one ever bothers to state. To D'Souza's credit, he is conscious of these as measures of his teaching expectations. Some of us would simply draw similar conclusions, but not be aware of the evidence on which we drew those conclusions.
Now what if we define education as a learned exchange of ideas in which students are expected to discover meaningful alternative ways of addressing a social problem. Suddenly the norm of teacher speaking from the front of the class, with the students passively listening, is inappropriate. Now maybe the teacher will take a seat and sit in a circle with the students, and all will speak and listen and maybe take notes. Our bet is that Dinesh D'Souza would still be uncomfortable with it. Why? Because there are unstated assumptions about hierarchy in the teaching process. He may have defined teaching in one given way and developed appropriate expectations based on that definition. Other definitions of teaching might then violate his expectations.
This is one plausible reason for Minow to insist that assumptions be stated. If we asked Dinesh D'Souza to give us his definition of teaching, and to clarify and state the assumptions underlying his expectations, then we could together develop some critical distance to discuss relative definitions of teaching. We could develop a basis of communication. But for so long as we both make judgments and decisions without ever stating our assumptions, we can find little room for discussion. (D'Souza, Dinesh, Illiberal Education: The Politics of Race and Sex on Campus. Vintage Books, Random House, 1992. ISBN 0-679-73857-6.)
When we are told that students who are serious about their work are on time for class, there is an underlying unstated assumption that students have control over their time. If, in fact, students work until five p.m. and then travel crowded freeways to get to a five-thirty p.m. class, they may be late because there is no physical route to get here on time. If we conclude that in arriving late they are not serious, we have made unjustifiable assumptions about their lateness. Or they may be late because their supervisor insisted they stay fifteen minutes later, and they cannot afford to jeopardize their job. Since we often do not voice these judgments, and certainly do not voice our underlying assumptions, the student has no opportunity to refute a wrong judgment. Underlying assumptions need to be stated.
Third Unstated Assumption: "The Observer Can See without a Perspective"
This is the assumption of neutrality, of the "objective" observer. Habermas, in his discussion of tension between facts and norms, focuses on the extent to which such neutrality, such objectivity are increasingly improbable, given the diversity of individual experience. Once again, the difficulty is less that objectivity is unattainable, than that we make that assumption and do not state it, in the process privileging the subjectivity of the observer.
This is the great dilemma of empiricism. Those who collect the empirical evidence forget that the perspective from which you seek and define the evidence includes a perspective. Rational argument, induction, deduction, analogy follow carefully defined rules in which no rule ever contradicts another. They are patterns for reasoning. You learned the rules in logic. We cannot socially construct logic. But social construction permeates the environment in which we practice that logic. If professors must always be present to sign academic forms, the forms must be personally presented by the person for whom they are to be signed, and professors are never present after 5, then no academic forms will be signed for people who can only bring the forms after 5. The "always" and the "never" exclude certain forms. But we know that systems can't function that rigidly. So we socially construct new and more acceptable norms for the signing of forms. We could agree that the form could be left with someone who is present after 5, and we could agree that the person requesting the form not be required to personally present the form. Of course, that might not be a good idea for academic advising forms. The signing of forms, like laws, may be prescribed by law with factual kinds of rules. But we will experience a tension as different social groupings experience those rules differently and develop different normative expectations for service after 5.
Fourth Unstated Assumption: "Other Perspectives Are Irrelevant"
This assumption crops up when we assume "circles of certainty." (Freire, Paolo, Pedagogy of the Oppressed, Continuum, New York, 1994 edition. ISBN 0-8264-0611-4.) Freire uses it to describe the failed revolutionary who believes that he/she "knows" what is best for those in whose name he/she hopes to create improved circumstances. For example, we know that children should learn to read. The perspective of the child who survives in a world where reading carries no particular value is rarely considered for it seems less important than our overriding knowledge that literacy is important. (Sapphire's new novel, Push, Alfred A. Knopf, 1996) is about just such a child. And she experienced difficulty writing the story of a child who could not read, could not write, for the story required of Sapphire herself precisely that reading and writing. Rosemary Mahoney, in a critical review, says "'Push' is written in her halting dialect, a hobbled, minimal English that defies the conventions of spelling and usage and dispenses with all verbal decorum." (New York Times Book Review, July 7, 1996, p.9.) But Push captures our attention. Sapphire may acquire greater skill in story telling over time. Push says she has learned to handle story telling already very well indeed.
Minow, in comparing rights analysis to a social-relations approach to justice, stresses the importance of understanding the relevance of all the perspectives involved, sometimes even those of people not normally considered. In the story of a child with spina bifida, Minow tells how the courts removed custody from the child's natural parents (who were overwhelmed by the child's disabilities and had placed him in an institution, expecting that he would not long survive). The courts gave custody to volunteers who had grown to love the child, who were willing to adopt him, and who would see that he had the heart operation that would prolong his life. This solution came about through advocacy, through each perspective making the best argument available, with an overall neutral trier of fact attempting to balance interests and needs to give justice. Minow says that rights analysis (a focus on parental rights, or infant's rights) won't take us this far, that we must adopt a social-relations approach that does focus on many perspectives, many alternatives, which cannot be generalized and categorized easily to any one party's "rights."
We once ran a psychodrama on this issue in a political sociology class. One student played the role of the teacher, one the role of the student. The teacher intoned the importance of reading to the recalcitrant child. "You must," she insisted, "learn to read. Reading will enable you to get a job like me." "Why," responded the recalcitrant child, "I can make more money than you in an hour on the street corner." The teacher remained speechless for one very long minute. This is what can happen when we assume that ours is the only perspective, and make no effort to understand the perspective, the context of the other. Perspectives matter. Our teacher may ultimately have found other persuasive arguments for literacy. But she was totally unprepared for the argument she encountered at that point.
Minow suggests that searching for the perspective of the other helps us identify the assumptions of which we are so often unaware. Certainly all lawyers are trained to advocacy, to skill in developing the opposing perspectives and in pursuing the perspective of their client to the exclusion of the other. That process helps us adjust our normative expectations to allow the perspective of others, for the lawyer must understand the opposition in order to argue her own perspective well. Although traditional law has limited itself to two opposing perspectives, it has indoctrinated us to consider at least two perspectives. The problem has been with capture and privilege, in which, though considered, sometimes the opposing perspective hasn't had much of a chance. At the very least, formal recognition has been there.
So where did we get the idea that the other perspectives are irrelevant? One plausible explanation is from the privileging of subjectivity. Some people are privileged to make the decision, with a trier of facts, or an administrator, or those making market decisions. Since they have the power to make the decision, their perspective will certainly count. Since they have made many correct decisions (by prevailing standards) to get to the point of having the power to decide, privilege, we might conclude their perspective works. We often generalize the sense that their decisions made from the perspective they represent (their subjectivity) would produce similar "good" results for all, and so we come to see their decisions as good and just for all. Easier then to see other perspectives as maybe ones that matter in some ways with which we can empathize, but not as important to the making of "good" decisions. Easy next step to finding other perspectives irrelevant to the decision-making.
We could also get to this same conclusion by dividing the "Big Issue" questions. By saying, "the other perspective really matters, but it is beyond the purview of this decision, which is really a market decision." A recent bank merger in California put thousands of people out of work. Workers helped to make that decision, through their pension funds. A different merger would have preserved all the jobs, but the pension fund would have gained a couple of percentage points less in profits.
Here the social-relations and social community perspectives were viewed as important, but not relevant to the decision, which was basically market driven. Increasingly, such decisions with multiple perspectives that affect us as individual workers and owners are requiring that we decide on the relevance of perspective.
Habermas suggests that normative expectations as they served in traditional societies are not workable in modern democratic societies as mechanisms of social integration because pluralism leaves us no single, religion, value system, moral system on which to rely. Habermas proposes a community of citizens freely engaging in communicative action as a substitute. He sees this community as reliant upon the sociological system of law.