May 18, 2005

Creating the conditions for a just society - 3

According to John Rawls in his A Theory of Justice we have to get together once and for all and make the rules of operation without knowing our particular situation. (See here, here, and here for previous postings on this topic.) And once we make the rules, and then lift the veil of ignorance and find out our particular situation (our gender, age, abilities, skills, talents, health, community, position in society, wealth, income, educational qualifications, level of authority and power, etc.), we are not allowed to renegotiate to get more favorable terms for us. This restriction is important since it ensures that careful deliberation goes into making sure that the rules created are perceived as fair by all.

Let's work through a specific simple case. People who are generally law-abiding would like to see laws and enforcement mechanisms that ensure their own safety and security and protect their property. If I belong to that category, I might want to advocate stern penalties (fines, imprisonment, harsh prison conditions, torture, even death) for law-breakers. But there is no guarantee that once the veil of ignorance is lifted, that I (for example) will be in the category of law-abiding people. It may turn out that I am actually a crook or have criminal intentions. Normally we would try and exclude crooks from the decision-making process because we have decided that they do not deserve the same rights as law-abiding people. But the veil of ignorance means that we cannot exclude people we disagree with in the rule-making process. I have to consider such possibilities as well when we agree to the rules.

So it is in my interest to make sure that the penalties for law-breaking are not too severe, since there is a chance that I may have to suffer them. Does this mean that crooks will prefer to opt for no penalties at all? No, because even crooks can function effectively only if they are the exception, if there is a general level of law-abiding behavior. After all, the executives who looted Enron and Tyco and caused thousands of people to lose all their savings could only do this because almost everyone else was behaving fairly honestly. This is why crooks can stash their stolen money in off-shore bank accounts and retrieve it later. If the officials in the off-shore banks were also crooks, the stolen money would not be 'safe.' Also if the other employees in your own company were not honest, the company would not make the amount of money that makes it worthwhile for you to steal it.

Even petty thieves could not function if everyone around them was also stealing from everyone else with no restriction. And since there is no guarantee that I will be the toughest crook around to fend off the other thieves, allowing for a totally lawless society could result in a terrible situation for me personally if it turns out (once the veil is lifted) that I am not very bright or strong or am clumsy with weapons. After all, there is no guarantee that I will be a skillful crook. An incompetent crook in a lawless society would fare much worse than one in a law-abiding society.

So it is in the interests of even crooks to create rules that encourage and reward honest behavior while ensuring reasonable treatment for law-breakers, just in case they get caught. So the two extremes (law abiding and honest people on the one hand, and crooks on the other) both have an interest in creating rules that balance the interests of both, since no one knows where they personally will end up.

What of the situation that triggered this series of posts, that of gay rights coming into conflict with certain interpretations of religions? Since the rules do not allow you to specify particulars, you cannot say (for example) that the Bible must be the basis for policy decisions. You would have to allow for the possibility for any religious text or that no religious text can form the basis. In other words, if the rules are to allow primacy for religion-based laws, you have to allow for the possibility that once the veil is lifted, you might end up as a Buddhist in a Judaism-based state or a Christian in a Hinduism-based state or you might be a gay person in an Islam-based state. If that should turn out to be the case, would you be content with the result?

Allowing for religious views to be the basis of regulating the private lives of individuals in a society also means allowing for the possibility that we might end up in a society run by groups like the now-defunct Shaker Christian sect, which advocated strict celibacy among its members. Of course, such a society would not likely last very long for obvious reasons (and the Shakers did, in fact, eventually disappear), but would we be willing to allow for this possibility?

Clearly the fact we could end up in any of these situations and have to live with it should cause us to think very carefully about what exactly are the rules of societal regulation that are important to us. I don't know what specific resolution will be arrived at using the veil of ignorance to address the problem of gay rights and religious opposition to homosexuality. But what I am suggesting is that that is the way we have to address problems such as these if we are to not to just continue to talk through each other, simply asserting our preferences based on our situation and repeating the same arguments.

In some ways, what Rawls is suggesting is that we need to get in the habit of seeing what the world looks like through the eyes of others who may be quite different from us, and ask ourselves whether we would still see the world to as fair from that vantage point. It also requires us to think in terms of universal principles as opposed to principles based on the beliefs and practices of specific groups.

Thinking in this way is hard to do but needs to be done if we are to have any hope of overcoming the differences in policy preferences created by the huge diversity that exists amongst us.

Now clearly those who believe that their vision of God is the right one, and/or their particular religious or secular text is the only source of authority, are going to find it hard to deal with Rawls' insistence that no identifiable and named groups can be used in formulating the rules. If you believe (for example) that Islam is the one true religion and that the Qu'ran (or Koran) has to be the basis of civil law, I cannot see how you can accept the 'veil of ignorance' principle (unless I am missing something). But rejecting this principle also means rejecting the idea of 'justice as fairness,' and dooms us to never-ending conflict because people who feel they are being unfairly treated will eventually rise up against their oppressors.


There is an interesting article by Steven Pinker titled Sniffing out the Gay Gene that is well worth reading. I came across it in the excellent blog run by The Center for Genetics Research Ethics and Law.


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"Those who believe that their vision of god is the right one" (I would guess this is most of them) cannot... "accept the 'veil of ignorance' principle. But rejecting this principle also means rejecting the idea of 'justice as fairness,' and dooms us to never-ending conflict."

With this information, once could argue that theism/religion is a source of never-ending conflict. Were you trying to make this point or do you think it is valid?

Posted by Aaron Shaffer on May 18, 2005 09:04 AM

That is an interesting and subtle point, one that I really need to think over more, but here is a preliminary reaction.

I think that there are very many tolerant people in all religious traditions. While they may they think that their religion is "right", they do not think that this implies that followers of other traditions are evil. Such people feel that it is not their role to say what God can or cannot do and what plan God has for the world. They tend to be circumspect in making assertions about the nature of God's will. Hence they allow for multiple paths to oneness with God, and avoid trying to force other people to convert to their own religion or force them to obey practices based on their religious beliefs.

Such people see their faith as a personal and private matter and should be able (I think) to view as fair a system that does not give primacy to any specific or identified religion. So they should have no problems with the veil of ignorance.

The potential for conflict arises when someone cannot conceive of living under any system of rules other than those based on his/her own particular religion. Such people will, I claim, be forced to reject the veil of ignorance principle.

Posted by Mano Singham on May 18, 2005 09:29 AM


You raise an important point that is not easy for me to address without quoting huge chunks of Rawls.

You're right that this requires us to look carefully at all the possible eventualities that might arise from our system, but this does not require a deity. It does require thoughtful and rational people. What you point out is that we must deliberate very, very carefully so that we can choose the best possible system that works for all of us. While we can tinker afterwards, the rules of operation of the tinkering apparatus have also to be decided.

I agree that getting entire populations to agree to go through this exercise will be a formidable challenge. But I see more practical and workable uses. I see it as a tool by which well-meaning groups of people who differ on contentious issues that are currently very divisive may begin to work to build a consensus.

Say, for example, we got back to the post that raised a lot of comments, that about the Dominionists and gays. People disagreed on the topic. I think all the people who participated (and even those who didn't but followed it) could start to come together if we all said that we agreed to adopt a policy that was agreeable to all of us, but only if we could each imagine ourselves in any role that ensues. Taking away the knowledge of our particular situation is a powerfully liberating way of looking for general solutions.

It is not going to be easy. We tend to have strong views on emotional issues but it is not impossible. In fact, I think it is quite plausible and, like most things, probably gets easier with practice.

But the other question of whether state and national legislatures can do this is more problematic. But we have to start somewhere if we are not going to be arguing and fighting forever.

p.s. I love that Sydney Harris cartoon that you linked to. It hangs on the bulletin board in my office.

Posted by Mano Singham on May 18, 2005 12:14 PM

Interesting, thanks.

I guess I am having trouble detaching *myself* from my own views enough that I'm having trouble envisioning others doing it. And this seems to be most needed on issues where it would seem the most difficult. Sure, applying these principles to gay rights (or abortion, or any number of other issues) could dramatically help resolve everyone's differences, but the very reason they're already such difficult issues (so many people are so emotionally invested that they hardly (if at all) even try to see other sides of the issue anymore) makes it seem almost impossible for that approach to be an option here -- however helpful it may be.

Oh, and thanks for linking to the "Sniffing out the Gay Gene" article. It was an interesting read, though I question the ability to study homosexuality in such black and white terms without taking into account bisexuality. It would have been interesting to see how these results applied to people who don't fit exactly into either of their test groups.

It does remind me, though, of an excellent write up I read many months ago (and spent way too much time unsuccessfully trying to find again this morning) about some research that finally started to explain the evolutionary side of homosexuality. The study in question found that gay men's female siblings had statistically significant tendencies towards having more children than most other women. I believe it attempted to quantify their libido as well, and study male siblings of gay females, but I don't recall exactly.

Posted by Tom Trelvik on May 18, 2005 01:13 PM

I've been following these last few posts and I find one bit of confusion in Rawls' theory. First, I do agree that it would be difficult for anyone to operate in a completely unbiased veil. However, I suppose with enough rational, moderate thinking individuals it could be possible. So let's assume that we do have a group of ignorant people gathered together to decide the rules of justice and fairness. But who decides what fairness is?
Perhaps fairness isn't the right word. What I mean is, do you equate being fair or unfair with being right or wrong? It seems to me from your description that the system would not be concerned with creating an absolute moral code but just a system of fairness which gives us a just society.
To me this idea sounds a lot like communism. When it comes to communism, I refer to the wisdom of Homer. "In theory communism works Marge, in theory." But seriously a perfectly just society has the potential for as many problems as an unjust society.

Posted by Joe Felix on May 18, 2005 08:35 PM

Mmmm, I love Home quotes, but on that topic I think I prefer this quote better:

"In theory, there is no difference between theory and practice. But, in practice, there is." - Jan L. A. van de Snepscheut

Posted by Tom Trelvik on May 18, 2005 10:00 PM

I was listening to NPR this morning and heard a great thinker on the subject of this and the previous two postings, Frederick Clarkson.

Along the lines of my previous question " could argue that theism/religion is a source of never-ending conflict... do you think it is valid?", he wrote a book entitled Eternal Hostility: The Struggle Between Theocracy and Democracy. It sounds interesting.

Posted by aaron on May 19, 2005 06:45 AM


You raise a point that I should have clarified better in my posts. It is in fact one of the features like most about Rawls theory. He does not try to define fairness because, as you rightly point out, we may each have different conceptions of it.

What he does is he suggests a process by which people arrive at the decisions about the rules under which we all agree to live. He just gives the name 'justice as fairness' to the end results of the process. So fairness for him is a label given to a product, and does not require a working definition.

In the dialogue I had with Erin in part 2 of this series of posts (see comments there), we talked about how rational people might arrive at conclusions about whether having slaves was fair, using the process that Rawls outlines. Even if a person did not object to slavery on moral grounds (i.e., thought it was 'fair'), the process is likely to result in it being rejected as an option.

Of course, Rawls implies (by the very use of those words) that although we do not start out with a predetermined definition of fairness, the end result of the process will approach our common, intuitive and general notions of fairness (like the ones we agree on for games), but he does not require that we agree on the more detailed a priori beliefs that each one of us may have about what is fair.

Posted by Mano Singham on May 19, 2005 08:38 AM