Every now and then people who, in the grand scheme of things, look and sound more or less like me state opinions that leave me pinching myself to see if I haven’t been sucked through the rabbit hole. Often these have to do with freedoms they would like to sacrifice to government bureaucrats. One neighbor of mine told me that when friends abroad mention charity they donated to the poor, he responds that he gives much more charity than them because he pays income tax to the Israeli government. I suppose that if he finds subsidizing corrupt labor unions, paying Azmi Bishara’s pension and hiring foreign corporations to build decorative bridges from nowhere to nowhere as fulfilling as feeding widows and orphans, he’s absolutely right. Another time, in discussions about a constitutional proposal I was working on, someone insisted that I include that the government only appoint dayanim who are yirei shamayim. When I suggested that this kind of language was likely to prove ineffective in a constitutional context and that perhaps it would be better if dayanim weren’t appointed by the government at all, he looked at me like I was odd and asked, in all sincerity, who would pay for them, if not the government.

In this post, I will try to explain the crucial idea that my interlocutors seem to have missed. (Why they missed it is also an interesting question and I hope to get to that in my next post.)

As we have seen, a person can find identity and meaning through voluntary participation in a community of people that share a moral code and narrative. A state is not such a community. As the British philosopher Roger Scruton puts it: “Citizenship is precisely not a form of brotherhood, of the kind that follows from a shared act of heartfelt submission: it is a relation among strangers, a collective apartness, in which fulfillment and meaning are confined to the private sphere.” In the terms of Durkheim we considered earlier, the state is a kind of gesellschaft, not a gemeinschaft.

The dynamics of moral communities are such that they always tend towards a certain degree of homogeneity. Individuals who don’t fit in are encouraged to leave and are generally happy to do so. When communities become too diverse, they split into sub-communities that are each more homogeneous. Citizenship, on the other hand, is based on territory and is often involuntary, so that the citizenry of a state tends to be heterogeneous. As we saw in my previous post, when there is little agreement within a state regarding moral matters, it is generally in everybody’s interest that the state be as neutral as possible on such matters. As a result, states are hardly likely to provide enough of a moral core for citizenship to constitute a “form of brotherhood”.

Typically, therefore, communities and states co-exist, each providing some human needs. The point that is often under-appreciated is that states and communities are in competition. They compete for our allegiance. As a member of my community, I have special loyalty to fellow community members. The state requires, however, that, within those areas that are regulated by the state, I treat all citizens equally. As a member of my community, I have very specific ideas about what is right and what is wrong. The state requires that, within those areas subject to legislation, I obey the laws of the state, whether or not they coincide with my ideas of right and wrong.

One of the ways that the state and communities compete for our allegiance is through the supply of services. Support for the poor can be provided through community-based charity or state allowances and welfare. Education can be provided either by communities in accord with the values and standards of the community or by the state in accord with the values of the bureaucrats who establish curricula and standards. Rabbis, dayanim and mashgichim can be chosen by communities in accordance with local needs or be appointed by the state in accordance with its preferences and political pressures. Needless to say, when these services are provided by the state, they are subject to state regulation.

We have seen earlier that those who are unaffiliated with any community have good reason to prefer that no area be immune to state regulation. It stands to reason, however, that those who are affiliated with some community would value above all their community’s independence and, in particular, its ability to resist state interference. Nevertheless, the temptations of the welfare state sometimes prove hard to resist.

Consider the example of state sponsorship of religious functionaries and services. There are at least four reasons (as always, the division is somewhat arbitrary) that this is bad for communities. First, a rabbi who is imposed on a community in top-down manner by bureaucrats far away from the community he will serve is unlikely to be chosen according to the particular needs of that community; he is more likely to either be the recipient of patronage or simply be bland enough not to threaten anyone on the committee. Second, even in the event that a competent rabbi is chosen, as a civil servant he will not need to maintain the respect of his community to keep his job and hence is unlikely to work any harder than absolutely necessary. Third, even in the event that a state-appointed rabbi is full of enthusiasm and positive energy, he can always be intimidated by state officials. An independent religious leader can lead resistance against overreaches of power by the state (think of Martin Luther King, for example), but is unlikely to do so if taking unpopular positions can get him fired. Finally, even if despite everything a rabbi makes courageous decisions, these decisions are subject to second-guessing by the courts.

When the state usurps the roles of communities, it not only does a poor job in performing those roles, it also weakens the communities that have been usurped and strengthens the influence of unaffiliateds. As communities weaken, two things happen. First, citizens’ lives are animated less and less by communal narratives that provide meaning, direction and motivation for virtuous acts. Second, the state, unchecked by the mediating influence of moral communities, expands its power and regulatory reach. The resulting dystopia is characterized by the "soft despotism" of the state captured so perfectly by Tocqueville:

I see an innumerable multitude of men, alike and equal, who turn about without repose in order to procure for themselves petty and vulgar pleasures with which they fill their souls. Each of them, withdrawn apart, is a virtual stranger, unaware of the fate of the others: his children and his particular friends form for him the entirety of the human race; as for his fellow citizens, he is beside them but he sees them not; he touches them and senses them not; he exists only in himself and for himself alone, and, if he still has a family, one could say at least that he no longer has a fatherland.

Over these is elevated an immense, tutelary power, which takes sole charge of assuring their enjoyment and of watching over their fate. It is absolute, attentive to detail, regular, provident, and gentle. It would resemble the paternal power if, like that power, it had as its object to prepare men for manhood, but it seeks, to the contrary, to keep them irrevocably fixed in childhood…

After having taken each individual in this fashion by turns into its powerful hands, and after having kneaded him in accord with its desires, the sovereign extends its arms about the society as a whole; it covers its surface with a network of petty regulations - complicated, minute, and uniform - through which even the most original minds and the most vigorous souls know not how to make their way past the crowd and emerge into the light of day. It does not break wills; it softens them, bends them, and directs them; rarely does it force one to act, but it constantly opposes itself to one's acting on one's own; it does not destroy; it prevents things from being born; it does not tyrannize, it gets in the way, it curtails, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to nothing more than a herd of timid and industrious animals, of which the government is the shepherd.

Let’s think about what legislating morality is likely to achieve. What are the costs and benefits of, for example, outlawing public indecency or selling chametz on Pesach in Israel? What are the costs and benefits of government non-recognition of same-sex unions or heterodox marriage and divorce?

To repeat a point I’ve already made, I’m entirely unpersuaded by a priori normative arguments against (or for) such legislation. I don’t understand the difference between “public arguments” (good) and “comprehensive theories” (bad). Likewise, I don’t understand why arguments from religion are unacceptable, but arguments from other no-less-rigid ideologies (pick your favorite contemporary –ism) are fine. I don’t see why forbidding the sale of whale blubber on kashrus grounds is illegitimate but forbidding it on ecological grounds is praiseworthy. I also don’t understand how we might distinguish a priori between water pollution as a negative externality and indecency as a negative externality.

Of course, I don’t understand all those things because I belong to a community and community-based ethics and divinity-based ethics are meaningful to me. If I were unaffiliated and understood only autonomy-based ethics, all the above distinctions would be obvious to me.

None of which means that legislating morality is necessarily a good idea, even for those who are affiliated with a community. In this post, I’ll state the perfectly obvious idea that those who wish to strengthen Judaism as a community endeavor might find that the costs of such legislation outweigh the benefits. In the next post, I’ll explain why certain legislation will almost certainly weaken precisely the communities we wish to strengthen.

Suppose we (whoever “we” happens to be) have the power to pass some legislation designed to anchor some moral principle in law, say, forbidding the sale of pork. Of course, the underlying moral principle in this case is meaningful to me but probably completely inaccessible to many other people. What are the benefits to me of such a law? Well, I’m likely to get a public square more to my taste. If the sight and smell of pork makes me ill the same way polluted air makes some people ill, such a law might help me avoid it. If seeing people blithely flouting our common heritage offends my moral sensibilities the same way that the sale of cat or dog meat might offend their sensibilities, such a law might spare me such offense. If I genuinely fear for the souls of sinners, such a law might save them from the fires of hell. Indeed, such a law might even help to strengthen national solidarity by contributing to a core of shared values.

But what is the cost I incur from such a law? Well, obviously it can backfire. It might cause resentment among people who might otherwise have not had any particular interest in pork and result in more commerce in pork than there might otherwise have been. It might also increase divisiveness and weaken solidarity. But I think the main cost has to do with a very real “veil of ignorance”. We might have the power to pass some legislation today that pushes some moral principle that we believe in. But we are quite ignorant about how the chips of power might fall tomorrow or the day after. If we push through a ban on pork today, people with stricter sensibilities and sharper eyes might push through a ban on broccoli tomorrow and some tender souls might ban animal slaughter the day after that. It might be in our interest – indeed it might actually be in everyone’s interest – to call a truce on certain kinds of moral legislation simply to avoid mutual harassment.

Now to be sure, it might not be in our interest to call a truce. Each time we contemplate some such legislation, we need to consider all the following: How important is this legislation for us? How much better is it than the next best alternative? How broad is the support for it and how deep is the resentment? What are the odds that the people who resent it most will be in a position of power sometime soon? To what extent will passage of this law influence whether they might pass a law that we resent? (Of course, we shouldn’t ignore the possibility that our opponents might be non-cooperative types – for example, they might be convinced of their own “neutrality” – so that restraint on our part might be counterproductive. But since our game is essentially an iterated prisoner’s dilemma, too much suspiciousness of this sort could lead to a sub-optimal equilibrium.) In short, we need to estimate the expected benefit against the expected cost.

As a practical matter, legislation of morality is likely to be worthwhile only if the matter is extremely important to us or if no neutral position is possible or if there is a strong consensus on our side. Thus, to a limited extent, my practical conclusions are not all that different than those of the normative approach I reject.

Nevertheless, there are crucial differences.

First, my approach does not preclude the possibility of legislating on the basis of some particular moral theory in the event that the benefit to a sufficiently strong coalition outweighs the cost to them.

Second, it does not posit the superiority, or even the existence, of any neutral view. In fact, there are many issues about which there is no neutral position; abortion is either murder or it’s not. The possibility of a neutral position might, however, be an important consideration in determining how much better some law is than the next best alternative: when no neutral position exists the gap will necessarily be larger. When a neutral position does exist on a matter of considerable controversy, we might indeed be well-advised to seize it.

Third, no argument is disqualified from public discourse. It might in fact be good policy on my part to present arguments in behalf of my position in terms that are meaningful to others whose present or future cooperation might be important for me. But it is also surely counter-productive to debate inauthentically. If we are motivated by considerations particular to a moral system that is not shared by all citizens, everyone is best served if we put our true motivations on the table. In the end, if we fail to be persuasive, we will not carry the day.

Given that we incur the smallest cost in legislating morality when the moral principle being legislated is least controversial, the most judicious investment of effort on our part would be in creating consensus around our moral views. And the best way to do that is to strengthen moral communities generally – or at least the kinds of communities that share our moral views.

It will be my contention in the next post that the worst thing we can do if we wish to strengthen the right kinds of communities is to do precisely what most people in my little corner of the world advocate, namely, to cede community power to the state.

We’ve been considering how Jewish statehood can advance Jewish peoplehood and, in particular, whether this would be advanced or hindered by state involvement in redistribution and regulation and/or state involvement in legislating morality. Since I want to give nuanced answers to these questions, I first want to dispose of the approach that argues that questions concerning the desirability or effectiveness of state actions are rendered irrelevant by normative claims regarding what the state is forbidden or obligated to do.

I’ll start the story with Jeremy Bentham, who argued that the state should act in such a way that would maximize the aggregate welfare of its citizens, roughly speaking, the sum of the utilities held by individual citizens. (For those who aren’t accustomed to the term, utility is an economics term that is not quite as objective as dollars (for example, your millionth dollar is of less marginal utility to you than your first dollar – the one that lets you buy a loaf of bread that you otherwise couldn’t afford), but is not quite as squishy as “happiness”.) It’s easy to see that this criterion, by itself, does not fit well with our moral intuitions. To take a notorious example, throwing gladiators into a ring to tear each other apart for the amusement of thousands of spectators might add to the sum of people’s happiness (thousands of people are entertained while only two suffer terribly), but still sounds like a bad idea. This example points up at least three problems with the utility maximization criterion. First, utilities are not really comparable: how does one compare the negative utility of being torn apart with the positive utility of being entertained. Second, in considering only aggregate utility, it fails to consider the distribution of that utility among individuals. Third, some things ought to be regarded as wrong, even if they do add to aggregate utility.

These problems were addressed by many philosophers and economists over the years, none more thoroughly and influentially than the late Harvard philosopher, John Rawls. But before we get to Rawls, allow me to reminisce about some of the happier hours of my elementary school years.

During recess we would often play punchball on West 89^th Street between Riverside Drive and West End Avenue. Home plate was a manhole (we called it a “sewer”) and second base was the next manhole east of it (it never crossed our minds that a ball could be punched from east to west). First base and third base were specified by agreement on opposite sides of the street about midway between home plate and second base. Asphalt was fair territory and the sidewalk was foul. The problem was that cars might be parked on either side of the street or both (depending in part on which alternate side parking regulations were in effect). Which cars were fair and which foul and various other ground rules were subject to negotiations between team captains or general shouting by everybody. Since some players were power hitters while others were weaker but more accurate hitters, rules could be cherry-picked to advantage one team or another. A plausible meta-rule for ensuring fair rules would be that captains would determine the rules without taking into account which team they were on. This would ensure that ground rules would not be biased towards one strategy or another (they’d be fair by being neutral). Likewise, it would ensure that runs and opportunities to score runs would initially be equally distributed, so that, for example, last licks were guaranteed if the team batting second was trailing. (In practice, the rebbe (pronounced ‘rebbie’) would end recess at his whim, so that the last licks rule amounted to wiping out the top of the last inning, if the game was cruelly terminated before the end of the bottom of the inning.)

After that pleasant detour, I’m back to Rawls. Rawls is concerned with how to define justice. His main argument is that in order to understand what justice is, we need to imagine a group of people who are together trying to establish from scratch (“the original position”) the rules that will govern them as a society. This setup is familiar from the idea of a social contract, discussed by many philosophers including Rousseau and Locke. Rawls’s added wrinkle is that in order that participants in this contract not try to leverage any prior advantages they may have, we should imagine further that the participants do not know anything about themselves (they are behind the “veil of ignorance”): they don’t know their age or gender, their natural abilities, their social and religious affiliations, their beliefs and preferences and so on. What arrangements would rational participants in such a game arrive at? Rawls argues that they would arrive at an arrangement in which each person would have the maximum degree of liberty consistent with others having the same and that of all possible distributions of utility across participants, the one that would be chosen would be the one in which the poorest member is best off (“maximin”). The point is that if you don’t know who you are, you will make sure that the poorest member of society doesn’t get screwed because he might be you. (This isn’t actually true unless you’re exceedingly risk averse, but never mind.)

Rawls spells out the conclusions that can be drawn from this experiment regarding what states should and should not do. States must remain neutral with regard to what constitutes virtue. They must not adopt any community’s definition of morality. This follows from the fact that participants in Rawls’s game do not know with which moral community they are affiliated. On the other hand, the state must not remain neutral with regard to distribution of primary goods, including economic goods and rights; it is obligated to redistribute for the benefit of those at greatest disadvantage. In short, legislating morality, no; welfare state, yes. The juxtaposition of these two positions is usually summarized by the statement that “the right is prior to the good”. In the terms I introduced in earlier posts, we can say that, according to Rawls, the ethics of autonomy is prior to the ethics of community and divinity. As Michael Sandel points out, the word “prior” here has two meanings. First, in the sense of superiority: in case of conflict the right to autonomy trumps community-based morality. Second, in the sense of being logically prior: it is possible to define what we mean by the right to autonomy without recourse to any theory of morality. Not coincidentally, this is precisely the position of the unaffiliateds we considered earlier.

Is Rawls’s argument convincing? Well, his conclusions depend crucially on the persuasiveness of his thought experiment in which participants in the game need to set ground rules without knowing, inter alia, to which communities they belong. This idea was perfectly persuasive as a guiding principle for setting ground rules in punchball on West 89^th Street. I could easily imagine myself on a different team; in fact, yesterday I was on a different team and tomorrow I’ll be on yet another team. But in Rawls’s game, once I peel away everything that makes me me, who is doing the deciding? Once you strip away my very identity, is there some self left that wants something? The claim that there is some self independent of the affiliations that constitute its identity (Sandel calls it the “unencumbered self”) already begs the conclusion that autonomy is prior to community-based morality. The point is that the affiliations, loyalties and beliefs that constitute your identity are all secondary and contingent. But then what is left that is primary and essential?

In his later work, Rawls wished to defend his earlier conclusions without recourse to any claims about the nature of the self (since such a claim was precisely the sort of “metaphysical” claim to which he did not wish to commit himself). Instead he claimed that in engaging in public debate citizens must bracket their moral commitments, loyalties and beliefs and argue only in terms that are comprehensible across moral communities. But either this claim is simply practical advice regarding how to get things done, in which case I take no issue with it, or else it is a normative claim, in which case it is no more persuasive than his earlier argument.

Furthermore, as I argued earlier, it is not possible to define the right to autonomy without recourse to some theory of morality generally. It’s easy enough to implement the rule that your right to move your fist as you wish ends at my nose, but how do we implement the rule that your right to make a public display ends where my sensibilities begin without deciding which sensibilities are worthy of this protection and which are not?

To take this argument a bit further, the whole notion of neutrality turns out to be a chimera once you start thinking about concrete examples. In fact, as Steven Smith argues, seemingly benign words like ‘neutrality’, ‘equality’ and ‘reciprocity’ are often used as Trojan horses for smuggling in various strongly biased ideas that we wish to shield from scrutiny. Suppose, for example, that we are arguing about whether abortion should be legal or illegal. You say a fetus is a human being and aborting it is murder; I say a fetus is nothing but protoplasm and it should be the right of the mother to abort it. Here’s my argument on neutrality grounds: the state must remain neutral on a question of morality such as this and so must remain uninvolved by permitting abortion. I’ve bludgeoned you, but I’m guessing that I haven’t persuaded you.

(Rawls’s actual argument on the matter is a bit more sophisticated. “Neutrality” isn’t a slam dunk winner for me, but you need to leave your murder argument home when you argue your point. You can try to persuade me only “in terms of a reasonable balance of public values”. It so happens, though, that according to Rawls “any reasonable balance of… values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester”. Presto. Presumably in response to this, Richard Posner writes: "I really do take the view that the sort of political discussion in which political philosophers, law professors, and other intellectuals engage is neither educative nor edifying; I also think it is largely inconsequential, and I am grateful for that fact. When a brilliant philosopher like Rawls gets down to the policy level and talks about abortion and campaign financing and the like, you recognize a perfectly conventional liberal and you begin to wonder whether his philosophy isn't just elaborate window dressing for standard left liberalism.")

One simply never knows when and how the neutrality card will be played in order to disqualify some argument. Should the state remain neutral on voluntarily contracted slavery? How about consensual incest? Blackmail? Drug dealing? Can you ever actually distinguish non-neutral moral commitments from “a reasonable balance of public values”?

Let’s move on. In Rawls’s thought experiment, people are asked to reach arrangements from that neutral position created by the veil of ignorance. In this respect, we punchball players were pretty decent Rawlsians; we set the ground rules behind the proverbial veil. But once the ground rules were established, we stopped being neutral and played to win. Imagine what kind of boring game it would have been if we actually played as if we didn’t know what team we were on. In the Rawlsian game, however, there is no distinction between setting the ground rules and playing the game. One is forever supposed to play for a tie. You want to argue about abortion? Fine, but we want a nice clean fight here so kindly leave your most deeply held beliefs at the door. Is it any wonder that public discourse these days is so vapid and unsatisfying?

Having said all that, I am not (yet) rejecting Rawls’s conclusions regarding the welfare state or legislating morality. I’m only rejecting normative arguments that insist on certain conclusions a priori. Indeed there are excellent prudential reasons for reaching conclusions that are in some respects not far from those of Rawls. I’ll get to these in my next two posts.

Garden variety discussions of what the state ought to do are inevitably frustrating and pointless. People assert, often with great passion, that the state is obligated to do such-and-such or that it has no right to do such-and-such. But these claims typically lack any content beyond a declaration of personal preference.

Don’t get me wrong. I’m prepared to defend the view that people do have moral intuitions and that these intuitions are no less real than other forms of cognition. So I’m not afraid of normative claims. But moral intuitions are adequate only within the context of a particular moral tradition. Given a substantive body of moral traditions, our intuitions can help guide us along at forks in the road. But normative discussions regarding the roles of states generally take place across moral communities that lack sufficient common ground. Making normative assertions in such a context are like shouting directions on the basis of compass readings without benefit of a map.

Now this hasn’t prevented libraries from filling up with tracts on political philosophy. In my next post, I hope to deal with some of the main ideas for regulating discourse across moral communities. But for now I want to discuss some ideas proposed by economists that actually have some analytic and empirical content. Economists ask which economic functions can be carried out more efficiently by the state than by free markets. (Of course, the word “efficiently” might very well be hiding some moral questions about which people might be disagree, but let’s elide that for the moment.) For this reason, I propose to begin this discussion from the economic point of view with an eye towards expanding out from there to broader moral questions.

There are a number of economic roles that even the most determined free-marketeers are prepared to concede to the state. (The second chapter of Milton Friedman’s Capitalism and Freedom is as good a starting point as any for such a discussion.)

First of all, for the market to work at all, property rights need to be protected. A police force, an army and a justice system are needed to ensure that property isn’t stolen or conquered and that contracts are honored.

Second, there are certain kinds of goods and transactions for which the market is likely to fail. For example, some goods like roads or streetlamps are non-excludable; once someone supplies them everyone can use them and there is no mechanism for collecting compensation for that use. In such cases, nobody will be willing to provide the goods. (Of course, nowadays there are technologies for efficiently collecting tolls on roads with restricted entry and exit and indeed such roads are increasingly being privatized.) Similarly, there are actions that impose costs on others (negative externalities) but for which it is impossible to compensate them. For example, my car pollutes the air you breathe, an imposition for which you and I could probably agree on some compensation. But, there is no practical mechanism through which I could execute that transaction with you and the indeterminate group of others similarly affected. The government, acting as a proxy for you, can at least charge me for my free ride by, for example, taxing gasoline.

Third, once we have conceded that the state needs to fulfill these roles, it must necessarily also establish the means and the mechanisms to do so. Broadly speaking, it needs to carry out some fiscal policy (setting taxation levels and spending levels and priorities), as well as some monetary policy (controlling money supply and setting interest rates).

So much for the roles of the state that are generally agreed upon. Now let’s consider two broad areas about which there has been endless debate with regard to the right level of state involvement.

The first concerns the extent to which the state should engage in benign paternalism. Should the state tax wealthier citizens for the purpose of supplementing the income of poorer citizens? Should the state use tax revenues to provide citizens with goods and services that the state regards as essential but that individual citizens may not wish to pay market prices for? Should the state regulate voluntary transactions among citizens for the protection of one or both of them?

The second concerns the extent to which the state should encourage or even enforce moral virtue. Should the state outlaw behavior which many people find morally offensive? Should the state sponsor religious institutions or services? Should the state regulate the education system to ensure inculcation of patriotic values or other virtues it regards as necessary for citizenship?

We’re going to spend plenty of time discussing these questions. For now, a few teasers.

First, if you’ve already conceded above that the state should compensate (partially) for negative externalities by, for example, penalizing air pollution, can you argue that the state should not similarly penalize offensive public acts? What’s the difference? (The question isn’t rhetorical; there are differences.)

Second, the first set of questions deal with state enforcement of fairness. The second set deals with state enforcement of community-based morality. So it’s probably not a coincidence that there is non-negligible negative correlation between support for the first type of state intervention and the second type of state intervention and that the best way to guess if someone supports only the former or only the latter is to know his degree of affiliation to some moral community.

Third, as I already suggested above, we can attack these questions from two different perspectives. One is the normative approach favored by many political philosophers that asserts that some interventions are right and others are wrong. The other is the prudential approach that asserts that some interventions lead to results that most people don’t want and others lead to results that most people do want.

In the next few posts, I’ll make two main points. First, normative arguments (typically supporting the first type of intervention and opposing the latter type) are generally not much more than political preferences disguised as high principle. Second, that many people in Israel, especially those who strongly identify as part of a Jewish community, unwittingly support the kinds of state intervention that lead to results that they do not want.