Undermining faith in the judiciary

I have always believed that people tend to behave better than one might expect them to when placed in positions of trust where high standards of behavior are expected of them. One particular kind of occupation exemplifies my belief, and that is judges.

The public expects members of the judiciary to act according to higher standards than the rest of us and I think that this expectation generally tends to be fulfilled. I believe that whenever someone enters a profession that has a noble calling, the very nature of the office tends to produce an ennobling effect.

This is particularly so in the case of the higher levels of judiciary. A person who becomes a Supreme Court judge, for example, is well aware that he or she is occupying a select position of great trust and responsibility, and I cannot help but believe that this will rub off on that person, making him or her strive to be worthy of that trust. This does not make them superhuman. They are still subject to normal human weaknesses and failures. They may still make wrong decisions. But I think that in general they behave better by virtue of occupying those positions than they might otherwise, and try to live up to the standards expected of them.

But this works only if the judges feel they are entering a noble calling and that they are expected to live up to it. If the prestige and the dignity of the judiciary is undermined by treating judges as if they were just political hacks, then they will behave accordingly. This is why I view with concern attempts by people, especially political leaders, to undermine faith in the judiciary. There are two ways in which this happens.

The first way is to personally attack judges whenever a decision does not go the way they wanted it to go. This tendency has accelerated in recent years in the US, as can be seen by the ugly venom heaped on the Florida judge in the Terry Schiavo case. We have seen similar invective hurled at judges when they have ruled in ways that people have not liked on hot button issues, ranging from First Amendment cases involving religion to flag burning to abortion. The judges have been decried as being “judicial activists” and worse.

The second way to undermine the judiciary is by clearly seeking to appoint judges precisely because they have a particular political agenda, and not because they display the intellect and independence of thought that a good judge should have.

Sri Lanka again offers an unfortunate precedent for this degeneration. It used to have a fairly independent judiciary whose members were nominated by a Judicial Services Commission, whose members were at least one step removed from direct political influence. It was expected that the JSC would nominate people who had serious credentials and hence there was the belief among the general public that judges were, on the whole, impartial although individual judges here and there may have been suspect. But again beginning in the 1970s, the government started to severely criticize judges who ruled against the government, even sending mobs to demonstrate in front of judges’ homes and try to intimidate them.

After that, it was only a short step to create a more overtly political process for the selection of judges, in order to ensure that decisions would be more acceptable to the government. Despite this, the ennobling effect that I spoke of earlier helped to make the judges better that one might expect, but it was a losing battle. When I was in Sri Lanka last month, I was told that faith in the impartiality of the judiciary had been badly undermined by the cumulative effects over the years of such negative policies.

This is a real pity because this kind of credibility, once lost, is hard to regain. Undermining the judiciary in this way a dangerous trend for any nation that values the rule of law. When you undermine faith in the impartiality and honesty of judges, you are just one step away from mob rule.

As I said above, the US seems to have already started down this unfortunate road. The upcoming battle for the Supreme Court vacancy created by the retirement of Sandra Day O’Connor will provide a good indication of the shape of things to come. It will be unfortunate if people focus on the nominee’s views on specific issues. I would much rather see an examination of whether the person shows a scholarly mind, whether he or she has shown an independence of thought, whether the person bases judgments and reasoning on evidence and on universal principles of justice and the constitution, whether the person shows compassion and understanding of the human condition in all its complexity, whether he or she listens to, understands, and appreciates the arguments of even those whom he or she rules against, and appreciates that the judiciary is the ultimate safeguard of rights and liberties for individuals against the massive power of governments and corporations. In other words, does the person have what we might identify as a “judicial temperament.”

If you speak with lawyers, they can often identify those judges whom they respect, even when those judges rule against the lawyers. Identifying what makes judges respected despite their specific opinions on specific cases is what the discussions about selecting a new Supreme Court justice should be all about.

But if the discussion ends up being (as I fear they will) about the nominee’s views on the Ten Commandments, abortion, gay marriage, flag burning, and the like, then we will be continuing to cheapen the whole Supreme Court.

The nature of the nominee and the discussion around it will tell us a lot about how we will be viewing the judiciary in the days, and perhaps generations, to come.

POST SCRIPT

Are you interested in having thoughtful discussions on deep topics? Consider attending the Socratease discussions. These are open to anyone and held every second Tuesday of each month (next one is on June 12) at Night Town restaurant on Cedar Road in Cleveland Heights (in the Cedar/Coventry area). The discussions are from 7:30-9:30pm. You are under no obligation to order food or drink from the restaurant.

The format is that all the people present who wish to can suggest a topic for the night’s discussion, then a vote is taken, and the winning topic becomes the focus for that night.

Should one use raw political power or govern by consensus?

The second parallelism I saw between political developments in Sri Lanka and in the US has been the breakdown in the usual rules of behavior regarding building consensus.

To some extent, politics in both Sri Lanka and the US are insider’s games. The people in the leadership of the two main parties tend to be members of the same elites, representing two wings of the same political and social class, and the same interests. Hence they tend to adopt ‘rules of the game’ that are usually civil and polite. One benefit of this civility is that the interests of the minority party at any given time is not completely ignored because the ruling party understands that it might be in the minority after the next election. The disadvantage is that the two parties do not challenge the basic status quo and the ruling elites, since they are both members of that same class.

Looking only at the positive side, the protection of minority interests in consensus-style governance has the effect of providing some political continuity, especially in parliamentary systems, where the legislature is a collection of individuals, each elected to represent a given geographic area. Under such a system, it is possible for a political party with just a bare majority of voters to have an overwhelmingly large majority in the legislature. In multiparty systems, it is even possible for a party that does not have even a majority of the popular vote to have a majority in the legislature. This can lead to wide swings in legislative majorities after each election (without a corresponding swing in actual votes or voter sentiment), so having rules that enable people to function both in and out of power becomes important

In Sri Lanka, this sense of following unwritten rules that benefited both sides existed until around 1970 and then started falling apart as each of the major parties started using raw political power to ram through policies that tended to ignore the interests of the opposing party. In 1970, one party (the SLFP) got a huge (more than two-thirds) majority and used that majority to change the constitution using a device of somewhat dubious legality. They even used their majority to unilaterally extend the life of the parliament by two years, so that instead of elections falling due in 1975, they were next held in 1977.

But in 1977, there was another big swing of the political pendulum and the opposition party (UNP) came to power with a huge (also more than two-thirds) majority. They too enacted sweeping constitutional changes, a chief one being replacing the old system of individual seats by a proportional representation system. Since the proportional representation system tends to provide a parliament that reflects more accurately the percentage of votes a party receives, it also had the effect of ensuring that future parliaments would be unlikely to have the two-thirds parliamentary majorities needed for undoing the constitutional changes that the UNP had put in place.

But since the huge majority that the UNP obtained in 1977 was still in place until the next election, the UNP was free to make constitutional changes freely, and this they proceeded to do, sometimes in the most self-serving way, making a mockery of democratic principles. For example, the government extended the life of the parliament (with its huge majority) by using a simple-majority referendum.

Another example of using raw power was how political defections were handled. It used to be that governments could be toppled if enough members of parliament switched allegiance from the government party to the opposition. Members had done this in the past for a variety of reasons, for political principles, as a mark of protest, or merely for personal ambition or other similarly ignoble reasons.
The post-1977 constitution eliminated this threat to the government’s stability by saying that if a member switched parties, that person automatically lost his or her seat and was replaced by someone from the party being vacated, thus maintaining the party status quo. This was a huge disincentive for any member to switch, since nothing would be gained. But then some members of the opposition said they wanted to switch to the government side. Since the government wanted to encourage this defection for propaganda purposes, the government used its huge majority to make a constitutional change that said that people could switch sides without losing their seats provided parliament voted to approve each such switch. This guaranteed that only party switching that favored the government could place, since only the government side had the votes to approve the switch.

This kind of frequent and ad-hoc changes to the constitution to serve narrow partisan ends resulted in a devaluation of the respect that a constitution should have. At one time, a joke made the rounds in Sri Lanka that had someone entering a bookstore and asking to purchase a copy of the constitution and being told that “Sorry, we do not sell periodicals.”

While I have observed this trend in Sri Lanka politics over the last three decades or so, its parallel development in the US is much more recent. The fight over the use of the filibuster, the attempts to enshrine a flag-burning amendment in the constitution, the battles over judicial nominees, the attempt to breach the establishment clause of the first amendment, are signs that using raw political power to gain short-term goals is gaining ground here too. The argument seems to be that political power is there to be used in whatever way possible.

There are two views on this trend. Some disapprove, saying that achieving consensus government is preferable, since that avoids nasty partisan battles and wild swings in policies. They appeal for ‘bipartisanship.’ Others argue that the problem with consensus politics and bipartisanship is that the politics of the most reactionary elements wins out, since bipartisanship usually results in the most intransigent person or party getting his or her own way. Also bipartisanship can be a symptom that the two major parties are in fact colluding to protect their common interests at the expense of the excluded classes. Such people argue that at least with using raw political power, there is a chance that your side will someday be in the ascendant and able to use it to pursue politics that you like.

This is a tricky question to which there is no simple answer, at least one that I can see.

Politics and religion-3

There is no doubt that people’s religious beliefs often have political implications. For example, if your religious beliefs require you to live according to certain principles, and the actions resulting from those principles bring you into conflict with the law, then one has an obligation to work to change the laws. Typically this is done by advocating and lobbying for specific legislation or, in the case of civil disobedience campaigns, by defying the law and taking the consequences in order to show the unjustness of the laws and thus sway public opinion. The latter strategy was used with great effect by Mahatma Gandhi and Martin Luther King. While Gandhi was secular, King was overtly religious and made no secret of the fact that he was driven at least partly by his religious convictions.
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Politics and religion-2

As I said before, the significant beginnings of Buddhist religious involvement in Sri Lankan politics began with the 1956 stunning landslide parliamentary victory by an underdog candidate who ran on a platform that shrewdly mixed nationalist politics with an appeal to the ethnic-religious Sinhala-Buddhist population that they would receive favorable treatment under his government.

While this resulted in a short-term benefit for the new Prime Minister and his government, they found it hard to meet the raised expectations of their aroused base and pretty soon things started falling apart. The most serious was the failure of the government to implement a deal to meet the needs of the minority Tamil population, because of the opposition from their more extreme Sinhala-Buddhist supporters, who argued then (and have done so ever since) that almost any concession to Tamil interests was a sell-out of the nation’s Sinhala-Buddhist heritage. This was followed in 1958 by a pogrom aimed at Tamils that resulted in many deaths, injuries, and displacements, and in 1959 the Prime Minister himself was assassinated by a Buddhist monk in a plot led by some Buddhist clergy, people who had once been his supporters.

But despite this seriously negative outcome, the die had been cast as far as political appeals to ethnic-religious chauvinist elements were concerned. Other politicians noted how successful such appeals had been in garnering votes and immediately almost all members of political parties started falling over themselves in trying to pander to the majority religion. Politicians who had not been known for their religious devotion ‘got religion’ in a big way.

This pandering took the form of public piety, making sure that everyone was aware of how religiously observant they were. They would make public shows of going to Buddhist temples, paying courtesy calls on the major Buddhist clerics, incorporating religious themes into speeches, etc. (Does this seem familiar in the US context?) Even some of the members of Marxist parties started doing these things, such was the pressure to conform to this new standard.

Governments started public funding of temples and the clergy, going so far as to provide temples with Mercedes-Benz limousines to transport the clerics. The irony is that Buddhism itself is a religion in the ascetic tradition, with the Buddha himself (the former prince Gautama) rejecting all worldly goods and attachments, seeing such things as barriers to attaining enlightenment and nirvana.

Perhaps the best example of the extent to which this kind of religious pandering led to absurd policies came in the way the calendar was changed. (You are going to find the following story hard to believe but it is true. I lived though this.) The Buddhist calendar is based on the lunar cycle. The full moon has always had religious significance for Buddhists because it is believed that the Buddha was born, attained enlightenment, and died on a full moon day. So one government, in its desire to pander to religious sentiment, decided that the weekly calendar that had the weekend on Saturday and Sunday was too Christian-centered and that what was needed was a Buddhist-centered calendar that was built around the lunar cycle. So the full moon, quarter moon, new moon and three-quarter moon days were made holidays (called ‘poya’ days) as were the days just preceding them (called the ‘pre-poya’ days). Thus the pre-poya and poya days were the new weekends, replacing Saturday and Sunday.

Since these days need not coincide with Saturday and Sunday, a new system had to be devised to keep track of weekdays. So the weekdays were called P1, P2, P3, P4, and P5, standing for the ‘first day after poya’, ‘second day after poya’, etc. The catch is that since the lunar cycle is around 29 days, every fourth week or so (there was no definite pattern), you would have an extra workday in the week, which was called P6. Keeping track of these things and scheduling future events became a nightmare. Every time the week with the extra day kicked in, authorities would have to decide which of the five weekday schedules would have to be followed on the extra day.

It also made interactions with the rest of the world problematic, because the periodic occurrence of the extra-long week meant that the poya days did not have a fixed relationship to the standard days of the week. Since the rest of the world worked on the standard week, people outside Sri Lanka never knew when we were off on our weekends, disrupting international trade.

This was the system that existed when I was in middle and high school, and it was confusing for everyone, to put it mildly. It is surprising that it lasted as long as it did (many years), but it finally collapsed because everyone just got sick of it, and Sri Lanka reverted to the standard system, without any seeming religious objections.. As a sop to the religious wing, the full moon day every month was retained as a religious holiday so that Sri Lankans now have probably the most public holidays of any nation.

The point of this story is that once political parties start competing for religious support, there seems to be no end to the kinds of ridiculous things that can ensue. The messing around with the weekly calendar was confusing and ridiculous but relatively benign. More serious is when these actions result in one group feeling that it is only their religious sentiment that matters when it comes to forming public policy.

In the US, there are already signs of the increased public piety among elected officials. They talk about their religion and their visits to churches are publicized. Religious spokespersons are invited to the White House. “Prayer breakfasts” are held routinely by elected officials. We have official “days of prayer.”

It also seems to have become routine for Presidents and other politicians to end their major speeches with the phrase “God Bless America.” This is relatively new. When President Kennedy spoke to the nation on the eve of the Cuban Missile Crisis, perhaps the closest the world has come to all-out nuclear war, he ended his speech with a simple “Thank you and good night.” This was the same ending used by President Nixon when in 1972 he spoke to nation about his plans for the war in Vietnam. Although Presidents up to and including the overtly religious Carter occasionally inserted references to God in their speeches, it was reserved for special rhetorical flourishes and it did not become a standard ending tagline for speeches until with President Reagan. It was his successor George H. W. Bush (the current president’s father) who really went over the top, ending his speeches with almost pep-rally like appeals for God’s blessings. (See the article by Jonathan Rauch in the National Journal for a review of God’s appearance in presidential speeches. Rauch also makes the astounding claim that seven states even prohibit atheists from holding public office! His article was written in 1999.)

When politicians feel the need for public statements of piety, then I think we are going down a dangerous road. There is a gripping ten-minute video clip from the TV program The West Wing that captures this issue very well. The clip is must see TV. In it the senator portrayed by Alan Alda, under pressure to make a show of his religion, makes this comment to the press “If you demand expressions of religious faith from politicians, you are just begging to be lied to…And it will be one of the easiest lies to ever have to tell to get your votes.” (To see the video, just click on the still of Alan Alda. You need Quicktime video to play it, and that is a free download if you don’t already have it.)

I have always believed that the secular state is the most just state. It also would fit (I think) with John Rawl’s ‘justice as fairness’ model for society. Many people think that ‘secular’ means atheist but that is wrong. A secular state means that laws must be neutral with respect to any or all religions or the lack of it. The government cannot promote any religion or deny people their right to practice the religion of their choice. The establishment clause of the First Amendment to the US constitution pretty much says it best: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

It would be a pity to undermine such a good idea.

Politics and the Fear Factor-3

In the two previous posts (see here and here), I spoke about the seeming paradox that in countries with endemic political violence, the people seem to be less frightened by it and the governments downplayed the fear. Whereas in the US, where political violence occurs very rarely, people are much more frightened and the government seems to fan the flames of it as much as possible, constantly referring to the war on terror, using color-coded alerts, scary language, etc.

I previously speculated as to the reasons why people responded differently, suggesting that endemic violence can result in a partial immunity to fear, purely as a survival mechanism. In this post, I will look at why governments respond differently.

One reason might be that in those countries where violence is endemic, governments tend to be unstable, under risk of collapsing at any time. The groups fighting the governments are usually trying to bring it down and the government has to use valuable resources (which might otherwise be used for development and public services) to supply the military and police in its anti-rebel efforts. All these things tend to be de-stabilizing. It is not uncommon for massive street protests in those countries to bring down a government. Hence it is in the interests of these governments to try and maintain a facade of stability, to assert that everything is just fine despite a little trouble here and there, so that people will retain some confidence in the government. Thus the reaction of governments to political violence is to downplay it, to say that it is not a threat. To do otherwise would be to display a dangerous sign of weakness.
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Politics and the Fear Factor-2

In the previous post, I said that I perceived a difference in the way that people in Sri Lanka and in the US reacted to political violence. There the reaction was to try and get back to normal patterns of behavior as soon as possible while here the reaction seemed to be to dwell on the violence unceasingly (how many times per week do we hear references to 9/11?) and to keep people in a state of fear.

I think that it is the behavior in the US that is exceptional and not that in Sri Lanka. I recall that when Lebanon was going through its extended period of civil war, the people there too would try to get back to normal too.

As I said in the last post, the average level of political deaths per year over the past thirty years in Sri Lanka equals that which occurred on 9/11. And since the country is small in size (about two thirds the size of Ohio, with a population of around 20 million), this means that violent acts are likely to have been directly experienced by many people. For example, an important government official was ambushed and gunned down in broad daylight right in front of my mother’s house in Colombo. And almost any person can tell you stories of personal losses or near misses from the violence. So the calmness with which they go about their daily business is quite remarkable.

I remember my previous trip to Sri Lanka in 2001. A week before our departure from the US, the LTTE carried out a daring attack on Colombo airport, bombing four planes on the tarmac and attacking the main terminal building, resulting in a prolonged gun battle with government troops. We went ahead with our trip anyway, and upon arrival in Colombo, as our plane taxied up to the terminal, we saw the charred remains of the bombed aircraft by the side of the tarmac. There were bullet holes in the glass windows and walls of the terminal too. But except for the presence of armed security personnel, the other people in the terminal seemed as relaxed as if nothing had happened just a week earlier.

Even during the two weeks I was there this month, the government was on the verge of collapse, A Buddhist priest was on a hunger strike, demonstrations were being held in the heart of the capital city with riots squads called out to quell the mobs, and yet life in the areas not immediately affected by the events proceeded normally.

Why is this?

This has nothing to do with personal courage. I find it absurd to think that people in different countries differ significantly in the amount of personal qualities (like courage) that they possess.

My theory is that it is the very ubiquitousness of violence in some countries that makes the people there deal with it so seemingly calmly. People cannot live for extended periods of time in fear and uncertainty. Doing so would drive you crazy, so people recalibrate their expectations, treating as normal what other people might see as exceptional. People quickly come to realize that unless you happen to be very unlucky and are in the wrong place at exactly the wrong time, you will be ok. So why worry about it? You might as well worry about being killed or injured in a car accident. In fact, if you are an ordinary citizen, the odds of the latter are probably higher than being killed by political violence.

Is this sort of insouciance a good thing? I don’t know. It seems sad that the way to become immune to political violence is to be inoculated by steady doses of it.

I feel that my own experiences of endemic violence living in Sri Lanka have given me a higher threshold for worry and so I am bemused when people in the US get hot and bothered by ‘threats’ that are really quite small. (Remember the ‘dirty bomb’ scare?). After all, the chance that an act of political violence will directly affect any given person in the US is vanishingly small. While people and government leaders should think about how to deal with political violence as a political issue, it seems to me a little bizarre for the average citizen to worry about it in terms of personal safety.

This should be especially true here since people in the US lived through the cold war with the Soviet Union, where the threat of danger to each person was real, significant, and palpable because of the vast array of nuclear weapons on both sides. I am surprised that the much smaller threats posed by the actions of small political groups like Al-Qaeda can now strike so much fear in people.

When we take away the risk of the use of many nuclear weapons over a wide area (something that only a technologically advanced state can do), what we are left with is the threat of localized attacks. Despite all the scares over biological or chemical weapons, they are ultimately effective only as tactical or battlefield weapons, and are difficult to use over large areas of land or for big populations. Nuclear weapons (and many of them) are the only real weapons of mass destruction.

But fear of being the victim of a political act of violence can be a useful political weapon and it is this issue that I will examine in the next posting.

Politics and the Fear Factor

Well, I’m back!

My silence for the past three weeks was because I was in Sri Lanka (the land of my birth and where some of my family still resides,) during the first two weeks of June, and then spent a few days in England on my return trip. During my time in Sri Lanka, there were some contrasts with life in the US that struck me that I will post about this week. These are not the obvious contrasts about wealth and lifestyles but more subtle ones.
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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.

POST SCRIPT

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.

Creating the conditions for a just society – 2

In the previous posting we saw how people tend to advocate policies based on their own particular background, situation, or preferences, and this necessarily results in perceptions of unfairness over the decisions made.

The key to understanding Rawls’ idea of ‘justice as fairness’ is that people perceive fairness in terms of the process by which results are achieved, not in terms of the actual outcomes of the process. When children play a game and at the end, one child complains that it was not fair, it usually means that the child feels that the rules of operation were either violated or exploited unethically, not that the child should not have lost (unless we are talking about a really spoiled child who feels entitled to always win).

So what Rawls is saying in his A Theory of Justice is that we need to collectively determine the rules by which decisions affecting all of society are arrived at, so that whatever results from that decision making process, everyone will accept that it is fair, although we may not agree with any given decision.

Rawls argues that the essential ingredient to achieving this fairness in process is the ‘veil of ignorance’ under which everyone who is involved in creating the rules (known as the ‘persons in the original position’) operates. What he means by this is:

First of all, no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of psychology such as his aversion to risk or liability to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its particular economic or political situation, or the level of civilization and culture it has been able to achieve. The persons in the original position have no information as to which generation they belong. (p. 118)

The veil of ignorance only excludes particular knowledge about the state of individuals or societies. It allows for the kind of general information needed to make meaningful decisions.

It is taken for granted, however, that they know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the principles of justice. (p. 119)

The rules which are arrived at cannot involve identifiable persons or groups or create special exemptions for such groups. For example, if one is making rules about religion, one cannot create rules that apply to a named religious group. You cannot say, for example, that a particular rule will be applied only if the majority of the population (once the veil of ignorance is lifted) turns out to be Christian (or Hindu or whatever.) You cannot also make rules dependent on what the particular situation of a named individual turns out to be. So you cannot say, for example, that the rule of free health care being available to all only kicks in if person X turns out to be sickly.

How would this work in practice? I will see in the next posting by applying it to special cases, including that involving the rights of gays.

Creating the conditions for a just society

The previous post that dealt with Dominionist’s negative views towards gays generated an interesting set of comments that frame nicely the kinds of problems we face when we try to arrive at rules for society that we can all live by and perceive as fair. (I will defer the planned posts on the religious opposition to Darwin to address this question first.)

In those comments, Joe’s understanding of Christianity leads him to think of homosexual behavior as sinful although he is not hostile to gays as people, drawing a parallel between the way that we can view alcoholism as bad while not thinking of alcoholics as evil people. Katie’s interpretation of Christianity, on the other hand, leads her to being a passionate supporter of gay rights. Aaron is an atheist, and Christianity-based arguments don’t have much sway with him. And, of course, there is a huge range of beliefs that span these three particular viewpoints. So how does one arrive at public policies that can be accepted as fair by everyone, not just with regard to gay rights, but in all aspects of public life?
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