I thought the three kids with he flute was a nice illustration of how reasonably values can be incommensurable (Sen)
utilitarian hedonism – has the hardest challenge but will get more weight than the others to pleasure. That’s why Bob might get it – his relative deprivation in life would make his happiness in getting the flute that much greater … on the utilitarian hedonist there is an alternative justification - that for human expression and potential to be maximised (rather than mere happy happy) we need to give people the things they can use - it is a refined utilitarian sort of argument that calls into the picture ideas of human striving for the good and just and beautiful (Aristotle teleological strain to it). As for Clara, the utilitarian might decide utility generation must be sustained by allowing people to keep what they have produced... economic egalitarian – committed to reducing the gaps in the economic means of people... NOTE Marx moved from the ‘right to one’s labour’ in later writings to the ‘distribution according to needs’
I think Sen's treatment of pluralism as incompatible with transcendental jurisprudence is quite nice - it is a demand to our theorists to come back to earth and focus on practical questions. Sen started his rise to fame working on famine - people die when distribution of the power to command resources is unfair - or &quot;famine&quot; (the Bengal famine of the 1940s was not caused by absolute shortage of food - it was a good harvest of rice, but by rural workers and small landholders being unable to command sufficient resources to feed themselves).
For Berlin, values are creations of mankind, rather than products of nature waiting to be discovered, though he also argued that the nature of mankind is such that certain values – for example, the importance of individual liberty – will hold true across cultures, which is part of what he meant when he called his position &quot;objective pluralism&quot;. With his account of value pluralism, he proposed the view that moral values may be equally, or rather incommensurably, valid and yet incompatible, and may therefore come into conflict with one another in a way that admits of no resolution without reference to particular contexts of decision. When values clash, it may not be that one is more important than the other. Keeping a promise may conflict with the pursuit of truth; liberty may clash with social justice . Moral conflicts are &quot;an intrinsic, irremovable element in human life&quot;. &quot;These collisions of values are of the essence of what they are and what we are.&quot; According to Berlin's pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori , that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty (the latter two values, contra Keats, may themselves be incompatible); knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are ‘an intrinsic, irremovable part of human life’; the idea of total human fulfilment is a chimera. ‘These collisions of values are of the essence of what they are and what we are’; a world in which such conflicts are resolved is not the world we know or understand (2002, 213).
You might want to link toleration up with supporting autonomy in learners as a teaching style/aim (it ties the psychology stuff we are doing to the value pluralism stuff - we have to respect difference and let students discuss and disagree because we support their autonomy - which in turn is good for their mental health and development as human beings). On autonomy as a human need and an important aspect of effective motivation refer to the &quot;self-determination theorists&quot; e.g. Deci, Ryan, Sheldon et al and you could (if pressed) refer the interested to Autonomy Support as an Interpersonal Motivating Style: Is It Teachable , Johnmarshall Reeve (1998) 23 Contemporary Educational Psychology 312 (he concluded yes, his analysis is expressly based upon Self-Determination Theory) - the SDT stuff is the stuff I want to write next in the draft affect chapter. The legal academic most associated with he ideas (he started off with Maslow and arrived at SDT and research partnership with Sheldon) is Lawrence S Krieger.
Staff - a requirement to be solid in your own values, whilst open to others, whilst still managing boundaries and encouraging open debate, and protecting all concerned in the process, maintaining unconditional positive regard at all times.
Are we all going to the same place: pluralism and value driven legal education
Are we all going to the same place: pluralism and value driven legal education Graham Ferris and Rebecca Huxley-Binns Nottingham Law School
Three children and a flute <ul><li>Anne claims the flute on the ground that she is the only one of the three who knows how to play it (the others do not deny this), and that it would be quite unjust to deny the flute to the only person who can actually play it. </li></ul>February 4, 2010
<ul><li>Bob speaks up. </li></ul><ul><li>His is the only one of the three who is so poor he has no toys of his own. The flute would give him something to play with (the other two concede they are richer and well supplied with engaging amenities). </li></ul>February 4, 2010
<ul><li>Clara speaks up. </li></ul><ul><li>She has been working diligently for many months to make the flute with her own labour (the others confirm this) and just when she was finished, “these expropriators come along and try to grab the flute away from me” </li></ul><ul><li>WHO GETS THE FLUTE? </li></ul>February 4, 2010
Easy? <ul><li>Is there a straightforward solution? </li></ul><ul><li>Is there one ‘right’ answer? </li></ul><ul><li>Anne gets it says the utilitarian hedonist </li></ul><ul><li>Bob gets it says the economic egalitarian but the utilitarian hedonist might be persuaded ... </li></ul><ul><li>Clara gets it says the libertarian and the left wing Marxist (they agree on little else) and the utilitarian is having a very difficult time of it all </li></ul>February 4, 2010
<ul><li>“ Theorists of different persuasions ... May each take the view that there is one straightforward just resolution that is easily detected , but they would each argue for totally different resolutions as being obviously right” </li></ul><ul><li>[B]y and large, all of us are capable of being reasonable through being open-minded about welcoming information and through reflecting on arguments coming from different quarters, along with undertaking interactive deliberations and debates on how the underlying issues should be seen.” </li></ul><ul><li>Sen, A. The Idea of Justice (2009) Allen Lane London </li></ul>February 4, 2010
Toleration <ul><li>… is a consensus value of higher education that demands both acceptance of value discordance and the rectitude of persuasion </li></ul><ul><li>... supports autonomy in learners as a teaching aim </li></ul><ul><li>... is active </li></ul><ul><li>...is not indifference, but a burning need to argue, reason, contend: whilst accepting that ultimately one may have to resign oneself to difference </li></ul>
<ul><li>“ In the lower-level rotunda of the central library, these words of Chicago’s late mayor Harold Washington are worked into a circular design in the marble floor: </li></ul><ul><ul><li>‘ Chicago … has brought together black and white, Asian and Hispanic, male and female, the young, the old, the disabled, gays and lesbians, Moslems, Christians and Jews, business leaders and neighbourhood activists, bankers and trade unionists – all have come together to mix and contend, to argue and to reason, to confront our problems and not merely to contain them.’ </li></ul></ul>
Robert D Putnam, Lewis M Feldstein, with Don Cohen, Better Together: Restoring the American Community (2003) Simon & Schuster, New Your, NY, pp.53-54. <ul><li>Yes, these are the words of a politician, but one not afraid to raise potentially controversial issues – for instance, to include gays and lesbians in his list of diverse citizens and to invite argument and contention, not merely the kind of tolerance that ignores differences and avoids contact with people of other races, classes, religions, or sexual orientation .” </li></ul>February 4, 2010
Conclusion <ul><li>Law can be a powerful ally to, or foe of, social advancement. The embedding of values and the encouragement of open discourse around values in the core curriculum of legal education is vital if legal education is to meet modern social and economic needs. If legal education abjures this possibility then it seems unlikely that any other forum will be able to compensate for such a failure. </li></ul>February 4, 2010