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.