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A basic premise of Ricoeur™s search for re¬‚ective equilibrium between a sense
of injustice and resolution of con¬‚ict in speci¬c situations is respect, described
as self-esteem ¬ltered through moral norm. He draws on Thomas Nagel™s (1991)
argument that every life counts and none is more important than any other
(Ricoeur 2000: 150; 2007: 66“7). Respect, as understood by Ricoeur (2007: 83), is
based on the paradox of autonomy as both a presupposition and a goal to attain, as
“a condition of possibility and a task.” Respect is directed toward a capable human
being “ and Ricoeur juxtaposes human capacities with vulnerabilities. Capacities
include the ability to speak, to act, to “gather one™s own life into an intelligible
narrative,” and the imputation “ the capacity to “answer for my acts . . . to be taken
as having been their actual author” (Ricoeur 2007: 82). Vulnerabilities include an
inability to speak (both speech defects and lack of voice in a public forum); a lack
of narrative identity or singularity of personal identity; and a lack of connection
with a symbolic order, which is the “very site of the strongest connection between

While expressing agreement with Kant and Hegel that “sanction restores the law” and that “pardon
cannot be substituted for justice” (Ricoeur 2000: 137; 2004: 473), in his ¬nal works Ricoeur (2005:
220) discusses the limitations on the closure that can be achieved through juridical processes: “Justice
does not exhaust the question of putting an end to the dispute begun by violence and reopened by
vengeance. . . . If ending the dispute is the ¬rst criterion for a state of peace, justice fails the test.” This
perspective leads to extended re¬‚ection on collective violence, its impact in cultural memory, and
the possibility of “unbinding the agent from his act” in a context shaped by memory and mourning.
Beginning with a sense of injustice rather than a normal model of justice is a point of departure
shared with Judith Shklar (1990: 47, 87), who argues that “[n]o theory of either justice or injustice
can be complete if it does not take account of the subjective sense of injustice and the sentiments
that make us cry out for revenge, and that “[t]o have no idea of what it means to be treated unjustly
is to have no more knowledge, no moral life.”
Doing Justice to Justice: Paul Ricoeur 163

self and norm” (Ricoeur 2007: 85). Law™s role, in relation to these capacities and
vulnerabilities, involves the role of a third person in “holding at a distance . . . the
facts in the case to be judged” and a “just distance between the victim and the
offender” (Ricoeur 2007: 89).
To appreciate the nuances of Ricoeur™s understanding of capacity-based respect,
it may be helpful to consider Peter French™s defense of “virtues of vengeance.”
French rejects the premise of equal moral worth as well as the ideal of distance
between violence suffered and retaliation in return. “People have unequal moral
merit and thereby unequal moral worth. The virtues of vengeance are founded
in that inequality. . . . [T]here is an unbridgeable moral chasm between people
who regularly do wicked deeds and those who typically do good deeds. . . . People
who do evil . . . from the moral point of view should be targeted for penalties
that are painful to them” (French 2001: 89, 187). French ¬nds unpersuasive “the
notion that concern about spiraling cycles of vengeance provoked the impersonal
institutionalization of punishment[,] . . . the greater fear would have been of all
sorts of wrongdoers practicing their transgressions with impunity due to the
economic rationality and cowardice of the general populace” (110). French™s views
are similar to more broadly instrumental ideas of law as a tool to be used to
achieve whatever ends are sought. “Instrumentalism . . . entails only means-ends
reasoning. Once an end has been decided upon, law can be used in any way possible
to advance the designated end, without limit. . . . The legitimacy of law then rides
on the rightness of the end the law is utilized to advance. . . . The ˜torture memo™
offers a supreme example” (Tamanaha 2006: 219).
Ricoeur would disagree with French™s empirical claims about the social costs
and bene¬ts of revenge, his normative claims about unequal worth, and the more
general instrumentalist notion of law as a normless tool. Ricoeur™s position re¬‚ects
cultural difference as well as difference in anthropology. Where French assumes
a typically American, individualistic account of identity based on a combination
of Locke, Machiavelli, and Nozick, and some contemporary legal instrumentalists
assume a Schmittian understanding of the political as a space con¬‚ict between
friend and enemy, Ricoeur (1998: 52“62; 2005: 212“16) argues throughout his
work for an intersubjective, interactive understanding of personal identity with
strong af¬nities to the work of Charles Taylor and Axel Honneth (see Honneth
1996; Taylor 1989, 1994).
Contrasting Ricoeur™s view with “virtues of vengeance” and instrumentalist
perspectives on law underlines the impact of his early work on Freud™s death drive
(Ricoeur 1970), of his subsequent working through of the “Hegelian temptation”
(Ricoeur 1988: 202“6; 1991: 200“4), and points toward in his ¬nal exploration of
too much and too little memory in Memory, History, Forgetting (Ricoeur 2004).
In that work he demonstrates the long-term social, political, and cultural costs of
satisfying desires for revenge. Such desires are fostered by a manipulated memory
of historical events, turning the events remembered into symbolic wounds. These
wounds then become sites within cultural memory for a compulsion to repeat
cycles of revenge. Advocates of revenge believe their wounds can be healed only by
ensuring that the wrongdoer suffers an equivalent or greater amount of pain, while
advocates of law as a normless tool for advancing goals believe reconciliation to be
164 David H. Fisher

an impossible fantasy. But there is never enough pain given to erase traumatized
memory “ and rejecting the possibility of reconciliation licenses acts of cruelty and
rage that can only initiate new cycles of revenge.
Against the background of an intersubjective anthropology of human capacities
and the burdens of unresolved cultural legacies, Ricoeur (2000: 139) insists that
legal “sanction will have reached its goal . . . only if the penalty is, if not accepted,
at least understood by the one who undergoes it. . . . If sanction must have a
future . . . must it not be that . . . the accused knows himself to be recognized at
least as a reasonable, responsible being, that is, as the author of his acts?” While
the procedural rules of the trial process “constitute an advance in justice over the
spirit of vengeance . . . the punishment as a type of penalty opens the way to the
spirit of vengeance, in spite of the fact that it came about through . . . trial process,
because the trial process in no way completely suppressed or abolished the spirit
of vengeance” (Ricoeur 2007: 229).

The range of alternatives for law™s legitimacy in the post“World War II environ-
ment “ positivism, realism, utilitarianism, and natural law “ were among the
stimuli for John Rawls™s development of a contractarian version of deontology.
Ricoeur™s (2000: 37) primary questions for Rawls are whether a deontological
approach to moral philosophy can be logically joined with a purely contractual-
ist procedure, and whether contractualism can “substitute a procedural approach
for every attempt to ground justice on some prior convictions concerning the
good?” His response is based on a combination of Aristotelian phronesis and an
understanding of judgment shaped by Kant™s Critique of Judgment. While Ricoeur
(2000: 39) agrees with Rawls™ rejection of utilitarianism™s “sacri¬cial principle that
is equivalent to legitimating the strategy of the scapegoat,” he argues that Rawls™s
A Theory of Justice constitutes an indirect plea for an ethical foundation for the
concept of justice” (38). Rawls™ entire effort, according to Ricoeur, “turns on the
demonstration that, for the utilitarian hypothesis, the one holding the least favored
position is a sacri¬cial victim, whereas the conception of justice he [Rawls] defends
is the only one to make this person [the victim] an equal partner” (49).
Ricoeur™s (2000: 50) claim is that Rawls™ procedural conception of justice “at
best provides a rationalization of a sense of justice that is always presupposed.”
The order that prevails through A Theory of Justice is circular, not lexical, and
Rawls™s procedural de¬nition of justice does not constitute an independent the-
ory but “rests on the preunderstanding that allows us to de¬ne and interpret
the two principles of justice” (51). Rawls™s “considered convictions” sums up this
preunderstanding, which includes an understanding of injustice based on equal-
ity. Reviewing Rawls™s modi¬cation of his position following A Theory of Justice,
Ricoeur claims that while Rawls™s subsequent attempt to ensure stability in circum-
stances of pluralism is more aware of the contingent historical and sociological
backgrounds than is his earlier work, he still requires a preunderstanding of people
as free and equal suf¬cient to support the notion of an overlapping consensus,
a notion that is Rawls™s not-entirely-satisfactory answer to “the problematic of
Doing Justice to Justice: Paul Ricoeur 165

domination which, in continental Europe at least, has largely occupied the scene
of political philosophy from Hegel to Max Weber and Carl Schmitt” (Ricoeur
2000: 74).
Ricoeur (2007: 232) does not dismiss the search for universal principles, but it
is an open question “whether we can formulate on the ethical juridical, and social
planes universal principles that are valid independently of persons, communities,
and cultures which are able to apply them, without any limitation having to
do with the particular circumstances of their application.” Ricoeur™s answer is a
guarded yes.
The aim to live well with and for others in just institutions begins with face-
to-face reciprocity, where solicitude is widely supported in many cultures. But my
other is not just the person who appears to me through his or her face, but everyone
de¬ned through his or her social role. While it may be possible to take a generalized
willingness to live together as a universal fact, “as soon as we qualify it by the wish
for just institutions, we place ourselves at a level where the universal is inextricably
intermingled with the contextual” (Ricoeur 2007: 235). Spaces for con¬‚ict in society
exist, and con¬‚ict is often expressed in terms of violence and vengeance. While
formal rules of procedure may limit the extent of violence, there are also limits
to the ability of a Kantian “ or neo-Kantian Rawlsian or Habermasian “ attempt
to legitimate these rules with norms of autonomy. These limits lead Ricoeur to
the notion of practical wisdom: “Why add such a third dimension to ethics and
morality? If it is the fact of con¬‚ict and more fundamentally the fact of violence
that forces us to pass from an ethics of the good life to a morality of obligation
and interdiction, it is what we can call the tragic aspect of action that leads us
to complete these formal principles of a universal ethics by rules of application
concerning historical-cultural contexts” (242).
As example of tragic action, Ricoeur (2007: 242) includes con¬‚ict of duties
such as those in Sophocles™ Antigone and cases in which the complexity of social
relations multiply situations in which “a moral or legal rule enters into con¬‚ict
with concern for the care of individual persons.” Rawls is said to be incapable of
dealing with tragic aspects of action: “It is above all in the juridical domain that
the necessity of a properly creative application is required” (Ricoeur 2007: 246).
What is law™s role in facilitating movement from desire to live well with others,
through the sieve of moral norms, to just institutions where practical wisdom
can determine con¬‚ict “ and create possible conditions for states of peace? In
our binary social and political world, a world imagined through the lens of Carl
Schmitt™s sterile concept of the political as con¬‚ict between friends and enemies “
“feminazis” versus “Neanderthals”, “radical Islamicist terrorists” versus “neocon-
servative Christian fundamentalists” “ the terms of abuse are as endless as the
imaginations that produce them are stupid and shallow.
Meditating on a century of lies and horror in Europe, Ricoeur understood all
too well where the binary logic of Manichaean thinking leads: blindness, followed
by killing ¬elds and ovens. By temperament a mediating thinker, his alternative
to the death drive™s compulsion to repeat seeking vengeance “ and to deconstruc-
tion™s dissolutions of oppositions as justice “ has some af¬nities with Heidegger™s
exposition of difference in Identity and Difference but is better characterized as
166 David H. Fisher

a post-Hegelian movement toward reconciliation through recognition. Gelassen-
heit from false or manipulated memory was, for Ricoeur, reached only through a
dif¬cult process of memory, recognition, and the work of mourning that might,
in turn, open onto possibilities of pardon, gift, and release. “A society cannot be
continually angry with itself. . . . Poetry knows that the political rests on forgetting
the unforgettable, ˜that never formulated oxymoron™” (Ricoeur 2005: 501). So did
Paul Ricoeur.


Cohen, David. Law, Violence and Community in Classical Athens. Cambridge: Cambridge
Univ. Press, 1995.
Constable, Marianne. Just Silences: The Limits and Possibilities of Modern Law. Princeton,
NJ: Princeton Univ. Press, 2005.
Derrida, Jacques. “Force of Law: The ˜Mystical Foundation of Authority.™” In Deconstruction
and the Possibility of Justice. Eds. Drucilla Cornell, Michel Rosenfeld, and David Gray
Carlson. New York: Routledge, 1992: 3“67.
French, Peter. The Virtues of Vengeance. Lawrence: Univ. Press of Kansas, 2001.
Honneth, Axel. The Struggle for Recognition: The Moral Grammar of Social Con¬‚icts. Cam-
bridge, MA: MIT Press, 1996.
Miller, William Ian. Eye for Eye. Cambridge: Cambridge Univ. Press, 2006.
Nagel, Thomas. Equality and Partiality. New York: Oxford Univ. Press, 1991.
Rawls, John. A Theory of Justice. Cambridge, MA: Harvard Univ. Press, 1971.
Ricoeur, Paul. The Course of Recognition. Trans. David Pellauer. Cambridge, MA: Harvard
Univ. Press, 2005.
. Critique and Conviction: Conversations with Fran§ois Azouvi and Marc de Launay.
Trans. Kathleen Blamey. New York: Columbia Univ. Press, 1998.
. Freud and Philosophy: An Essay on Interpretation. Trans. Denis Savage. New Haven,
CT: Yale Univ. Press, 1970.
. From Text to Action: Essays in Hermeneutics II. Trans. Kathleen Blamey and John B.
Thompson. Evanston, IL: Northwestern Univ. Press, 1991.
. The Just. Trans. David Pellauer. Chicago: Univ. of Chicago Press, 2000.
. Memory, History, Forgetting. Trans. Kathleen Blamey and David Pellauer. Chicago:
Univ. of Chicago Press, 2004.
. Oneself as Another. Trans. Kathleen Blamey. Chicago: Univ. of Chicago Press, 1992.
. Re¬‚ections on the Just. Trans. David Pellauer. Chicago: Univ. of Chicago Press, 2007.
. Time and Narrative, 3 vols. Trans. Kathleen McLaughlin and David Pellauer.
Chicago: Univ. of Chicago Press, 1983“8.
Shklar, Judith. Faces of Injustice. New Haven, CT: Yale Univ. Press, 1990.
Tamanaha, Brian Z. Law as a Means to an End: Threat to the Rule of Law. New York:
Cambridge Univ. Press, 2006.
Taylor, Charles. “The Politics of Recognition.” In Multiculturalism: Examining the Politics
of Recognition. Ed. Amy Gutmann. Princeton, NJ: Princeton Univ. Press, 1994: 25“73.
. Sources of the Self: The Making of Modern Identity. Cambridge, MA: Harvard Univ.
Press, 1989.
Thomas R. S. No Truce With The Furies. Bloodaxe Books, Tarset 1995. c Kunjana Thomas
20 Love Is All You Need: Freedom of Thought
versus Freedom of Action
eugene garver

Why should we give greater freedom to thought, speech, and expression than to
actions? Speech can cause as much harm as action, and yet just because speech
causes damage is not by itself a suf¬cient reason to prevent it. If I persuade large
numbers of people that condoms don™t work, and they then don™t use them, I
cause harm but would be guilty of no crime. If I in¬ltrate a condom factory and
reset the machines so that the condoms™ failure rate increases to match the claims
that condoms don™t work, I not only do harm but also can be prosecuted for the
injuries I cause to others. Hume (1816: 48) refers to the “paradoxical principle and
salutary practice of toleration”; I would like to strengthen the practice by making
its principle appear as paradoxical as it should.1
A great deal of political and moral theory of the past three hundred years has
been devoted to supplying new understandings of fundamental moral and political
ideas once their original religious underpinnings are no longer credible. Thus Mill
(1977, 217) begins On Liberty by distinguishing his subject, civil and political
liberty, from “so-called ˜freedom of the will.™” By his time, free will had become
a metaphysical ¬ction no longer connected to sin, grace, and salvation, but it left
in its train live, practical issues about civil and political freedom. The separation
of power over thought and expression from power over actions originated in the
battle for freedom of religious conscience. The philosophical issue facing law today
is whether the distinction between thought and action, and the greater deference
we extend to thought and speech as opposed to actions, is coherent independent
of its religious origin.
If my salvation depends on my beliefs, and not on my actions, then my thoughts
have an incomparable importance to me that makes state interference otiose. Once
personal salvation drops out of the picture, though, many of my actions can be
more important to me and more closely tied to my personal identity than any beliefs
I might have: the “real” me is located in making money by driving competitors out
of business, while religion is just a hobby. Given the choice, I would prefer to give

Whether freedom of speech is identical to freedom of thought is a disputed question that I cannot
consider in detail here. For purposes of this essay, I will assume, with Spinoza and Mill, that they
are the same.

| 167 |
168 Eugene Garver

up religious freedom in exchange for keeping the freedom to defeat others through
sharp business practices (see, e.g., Carter 1987).
Making the thought-action or speech-action distinction crucial means that in
litigation everything turns on whether a given act is classi¬ed as speech or action,
yet it is hard to say why that classi¬cation should matter so much once the religious
sense of freedom of conscience disappears. Putting up tents across from the White
House as an act of protest is allowed but as places to live they will be torn down.
Disrupting traf¬c is a nuisance or a protest. Nude dancing either is a nuisance or
expresses an idea, in which case it no longer counts as a nuisance (see, generally,
Bollinger 2002). I want to see if there are good grounds for placing such a heavy
reliance on this distinction between thinking and acting (Bollinger 1986: 10).
Justi¬cations that words don™t wound “ that speech has no effects on others, or
that state coercion of opinion doesn™t work, that the actions of others have no
effects on speech “ are not ultimately credible. The variety of attempts at justifying
the First Amendment protection of freedom of speech presupposes a difference
between freedom of thought and freedom of action. I want to ask why we treat
thought and action so differently.
Take away the religious arguments for freedom of conscience, and it might seem
that we can make a simple practical argument for freedom of thought. One might
think that protecting freedom of thought leads to an increased scope for freedom
of action, as Mill™s single principle would have it. Therefore freedom of thought
can be justi¬ed, not because thinking for oneself and saying what one thinks to
others are themselves good things, but because they lead to the good thing of a
greater realm of personal freedom of action. Unfortunately, that argument is too
good to be true, and there are counterexamples that force us to do better. As Kant
(1990: 85) puts it in What Is Enlightenment?: “[a]rgue as much as you want and
about what you want, but obey!” Freedom of thought and speech is consistent with
signi¬cant limitations on freedom of action. Indeed, in thinkers like Spinoza and
Kant, protecting freedom of thought can lead to greater restrictions on freedom of
action. “A lesser degree of civil freedom gives intellectual freedom enough room
to expand to its fullest extent” (Kant 1990: 85).

Instead of trying to produce yet another justi¬cation for treating thoughts and
actions differently, I want to use a Platonic example to highlight its puzzles. Plato
lives in a world without a distinction between public and private, without any
connection between freedom of thought and discussion and freedom of religion
and conscience. If freedom of thought is a value in such a world, it certainly is not
because of its connection to individual salvation. In the Gorgias, Plato turns upside
down (481c) all the dif¬culties with freedom of thought and the thought-action
distinction, and his arguments can serve as a thought experiment that help us see
what is special about freedom of thought and expression. Callicles warns Socrates
that his unworldly, naive behavior makes him easy prey to anyone who wants to
master him, in law courts or elsewhere (484d“484e). Callicles thinks that Socrates™
confession of vulnerability to assaults by others refutes his way of life. But Socrates
Love Is All You Need: Freedom of Thought versus Freedom of Action 169

outrageously claims that being tortured, jailed, exiled, or put to death cannot harm
the good person (521b5“521b6, see Apology at 41d1). Only being corrupted can
do harm, and the better you are, the harder it is for you to be corrupted. The
better you are, the more you are invulnerable to harm. The only way anyone can
be harmed is by being made worse, less virtuous, and more vicious. We can take
the care of our souls seriously if we become indifferent to the cares of the body, to
wealth, reputation, and personal security.
In a complete reversal of both his contemporaries and liberal democracy,
Socrates maintains that only thoughts can cause harm, or good, and that we should
be indifferent to others™ actions, because they can™t harm us. I can be harmed only by
coming to have worse opinions, not by being impoverished or physically assaulted.
Of course, Socrates says, it is a bad thing to be physically harmed by someone, but
not as bad as doing the harming. It is less bad to be the victim of injustice than to
commit it. Callicles is right that Socrates turns the moral world upside down. My
initial question was why thought and expression should be more protected than
actions. According to Socrates, thought and expression are more dangerous than
The ¬rst thing to notice about Socrates™ thesis is that its practical consequences
are ambiguous. The fact that only thoughts can do harm is not, Socrates argues in
the Apology, a reason for the state to limit freedom of thought and discussion, but a
reason to turn our attention and care from other people™s actions to their opinions.
If the unexamined life is not worth living, then each must have the freedom to
examine his or her life for him- or herself. But that same fact that only thoughts
can harm is the reason that the ideal state of the Republic takes opinions seriously
enough that most of its laws concern education, and not the security of person
and property that is central to other legal schemes. Just as people who make wealth
central to people™s lives can either infer that the state must keep its hands off of
wealth-making activities, or that the state has a duty to regulate those activities,
so making the truth of one™s opinions central to life can either lead to freedom of
thought or to its complete regulation.
The religious, and especially Protestant, origins of contemporary freedom of
conscience have made the inference from thought™s importance to its freedom
smoother than it would otherwise be. Freedom of thought does not follow from
the fact that only thoughts can harm, that only thoughts count. If the individ-
ual™s thoughts and opinions are of ultimate value, it is equally possible to infer
either to freedom or to complete control over thoughts to ensure that we all have
the right ones. Plato draws both conclusions. Historically, both tolerance and
imposed uniformity of belief followed from the thesis that one™s faith is of ultimate
Second, paradoxical as his thesis is, at least Socrates offers reasons why other
people™s actions cannot harm us, as the only true harm is making us worse, and no
one else™s actions can do that to us. We today have a harder time explaining why
the thoughts and words of others shouldn™t be subject to regulation, because they
so obviously can do harm, and in ways that go beyond the obvious exceptions to
freedom of speech such as ¬ghting words or defamation. Because of this trouble,
modern arguments about freedom of thought are divided into two incompatible
170 Eugene Garver

lines of thought, ¬rst protecting free speech because conscience is so important to
me, and second because my opinions and beliefs are so unimportant to you. That
is the contemporary equivalent of Socrates™ paradox. Today I care only about your
actions, while you “ at least according to the theory of the First Amendment “ care
most about your thoughts. I am indifferent to your thoughts, and so I can tolerate
them. As Jefferson (1984: 285) put it, “It does me no harm for my neighbor to
say that there are no gods or twenty gods; it neither picks my pocket nor breaks
my leg.” I don™t protect freedom of speech because of its importance to him but
because of its unimportance to me. Indifference has been the greatest historical
force for freedom of thought. Indifference is the emotional counterpart to the
skepticism that has also been a force in the cause of freedom.
But whenever freedom of thought is secure, it works to distinguish itself from
skepticism and indifference. For good reason. Indifference can be insulting or a
patronizing appreciation of the exotic. Thus the attitude of the Supreme Court
toward the Old Order Amish in Yoder (1972). Indifference may be better than
persecution, but once I™ve been left alone through indifference, I want more: I
not only want to be able to speak but also want you to listen to me.2 Therefore
Socrates in the Apology rejects any outcome short of the citizens of Athens listening
seriously to his questioning.
Therefore the great paradox of freedom of thought, a paradox that does not
apply to freedom of action. Thoughts deserve protection both because of their
supreme importance to me and because they are of no consequence to anyone else.
Indifference answers only one question about freedom of thought. It justi¬es your
allowing me to express divergent and disturbing ideas. But the argument from
indifference says nothing about why I should want freedom of thought for myself,
only why others shouldn™t be bothered by it. It goes against a lot of evidence simply
to postulate a universal desire for freedom of thought, even if everyone should
reasonably be supposed to want to act as he or she likes.
Here, then, is a difference between thought and action. Kant (1990: 83) begins
What Is Enlightenment? thus: “Enlightenment is man™s emergence from his self-
imposed immaturity. Immaturity is the inability to use one™s understanding with-
out guidance from another. This immaturity is self-imposed when its cause lies
not in lack of understanding, but in lack of resolve and courage to use it without
guidance from another.” If I need to believe for myself in order for salvation, the
need to think for myself is obvious. But take that need away, and it isn™t clear why
I shouldn™t “have a book to serve as my understanding, a pastor to serve as my
conscience, a physician to determine my diet for me.” Why I should want freedom
of action might be obvious, but why I should want freedom of thought and speech
is not. Socrates frames his ideas paradoxically because not everyone sees freedom
of belief and expression as valuable.

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