Is Compromise Bad?

iscompromisereal

It can seem messy, unguided, emotional, or political. How do we know when to use compromise and when to resist it?

by Martha Minow

The excerpt below was part of keynote speaker Martha Minow’s opening lecture at the Gender, Culture, Religion and the Law conference. Martha is a Jeremiah Smith, Jr. Professor of Law at Harvard Law School, served on the Independent International Commission Kosovo, and helped to launch Imagine Coexistence, a program of the UN High Commissioner for Refugees, to promote peaceful development in post-conflict societies.

Compromise and accommodation imply abandonment of principles, rights, and commitments. Widespread discomfort with compromise may explain the American reliance on institutions—such as the jury—that do the compromising behind closed doors. If “compromise” means departure from principle, by definition, it produces a shortfall; it seems inadequate or even corrupt. Compromise in this sense means unprincipled; uncompromising means principled. Yet “uncompromising” can also mean unyielding in the less positive sense of rigid. With this meaning, its opposite does not look so bad. Compromises should not always be castigated because they signal the flexibility that is sometimes good. Practically speaking, accommodation is indispensable in a diverse polity and between conflicting nations.

This practical need for accommodation may only suggest that compromise is inevitable, not that it is desirable. The important question is when compromise or accommodation should be resisted, and when instead it should be advanced. Compromise can seem messy, unguided, emotional, or political; it can seem to abandon what the very notion of “rights” would command. More precisely, compromise can seem undesirable for three reasons: 1) it can seem to sacrifice important ideals for the sake of avoiding conflict; 2) it can seem to involve middle positions that are more incoherent or less defensible than the rejected alternatives; or 3) it can require “dealing with the devil” who uses illicit tactics that should not be rewarded. Let’s take each problem in turn.

Sacrificing important ideas to avoid conflict?

Simply avoiding conflict is not a sufficient rationale for sacrificing important principles especially in the context of constitutional and human rights. The very aspiration of rights is to alter how people might otherwise be inclined to treat one another. Constitutional or human rights fail at the starting gate if they collapse in the face of the conflicts they foreseeably provoke.

Yet the ideals of human dignity and freedom animating constitutional rights also are relevant to peace and social stability; reducing or eliminating conflict cannot silence calls for human rights but nor is the cessation of conflict irrelevant to the realizing of human rights. Women’s equality requires struggle in societies that have not guaranteed it (meaning: most societies), yet women themselves often care deeply about maintaining relationships and preserving their involvement in religious and other communities, so struggle that destroys those ties can be counterproductive. Processes of accommodation and balancing are indispensable given the predicates of peace and social stability necessary for realizing all ideals and norms. Developing the capacity for accommodation is necessary for peace and social stability. Compromise does not become acceptable simply if it avoids conflict, but pursuit of peaceful relationships can be a reason to work for a compromise that is otherwise justifiable and acceptable.

Is the middle position too messy?

In a perhaps apocryphal case, a judge heard a plaintiff and defendant argue over which rightfully owned a herd of cattle; unable to decide in the face of two plausible claims, the judge ordered the herd divided between the two parties—only to be reversed by the appellate court for failing to do the job of judging. It is a faulty view of judging, though, that imagines only all-or-nothing conclusions. In a sophisticated view of judging, the decision need not always result in an all-or-nothing result but instead can apportion ownership, or blame, or liability across multiple parties.

Granted, at times a middle position can be simply worse than either alternative. Just as painting a room half one color and half the other may be worse aesthetically than picking one of the colors, allowing officials discretion about what private expression to permit in a public space (on a bus or on a plaza) can be worse than permitting or restricting all speech in that space. But these examples do not prove that the middle ground is invariably worse. In fact, some middle positions are defensible and embody their own principles, such as: abortion should be legal but rare; and racial conscious governmental categories can be justifiable but only when narrowly tailored to serve a compelling public interest. The fact that these examples reflect commitments to multiple values does not make them unprincipled; instead, a principled position can embody considered apportionment of commitments to multiple and at times competing values.

Is compromise a deal with the devil?

A different objection to compromise attaches when it arises in the face of violence or other illegitimate threats. Negotiating with kidnappers or terrorists compromises principled opposition to their behavior even though it may be necessary to save lives or produce peace. Peace and life are values just as much as the principles condemning kidnapping and terrorism. But recognizing these as legitimate goals does not alter the danger that negotiating with kidnappers and terrorists creates incentives rather than deterrence for future kidnapping and terrorism. Hence, even when such negotiations are sought and heralded, they are tainted by “dealing with the devil” and failure to hold firm against tactics that should not be rewarded. The problem is, however, morally complicated because refusing to negotiate can produce immediate negative effects; hence, it may be an understandable and even justifiable compromise to negotiate with kidnappers or terrorists in order to save lives, but it is a compromise in the sense of foregoing steadfast adherence to the principle that condemns the tactics pressuring for such negotiation.

So what may initially seem to be an abandonment of principle may instead be an acknowledgment of and tribute to multiple values, yet what may seem an acknowledgement of multiple values may instead be capitulation to illicit pressures. Compromising in response to a threat can be defended given limited available options, but this kind of compromise is not likely to comport with the ideals of constitutional and human rights. But then the negative connotations properly apply to the poverty of the options more than to selection of one.

In contrast, if accommodating multiple principles is in fact a compromise, it can be defensible precisely because comparably valuable principles compete; the effort to balance competing principles itself should not be viewed as a departure from principle itself. In the context of international conflict, giving up on rights claims in order to avoid conflict does not help realize rights, but working out accords that secure peace can in fact be crucial to making human rights possible.

Compromise and accommodation should not be viewed as inevitably unprincipled or undesirable. In the contexts of constitutional and human rights, compromise can be part of an ongoing process of elaborating, debating, and accommodating differences. Within a nation state, where conflicts between a group and the nation are intense, processes of accommodation produce the stability that can hold the nation together. Who speaks for the group in such accommodations is a fair question, to which I’ll need to return. But it is worth pushing for something better than compromise, when possible, and that lies in the possibility of convergence.

About the Author

Martha Minow
The excerpt above was taken from Is Pluralism an Ideal or a Compromise? by Martha Minow. Martha writes about human rights and advocacy for members of racial and religious minorities, and for women, children, and persons with disabilities. She is the author of many books, including Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1998), which was awarded the American Society of International Law Certificate of Merit in 2000. Martha recently completed a five-year partnership with the federal Department of Education and the Center for Applied Special Technology to expand access to the general curriculum for students with disabilities. She directs the Seevak Fund for Facing History at Harvard Law School.

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