Genesis 1:26.

AND GOD SAID, LET US MAKE ADAM IN OUR IMAGE, AFTER OUR LIKENESS

Part III: Loyalty and the Limits of Equality.

The principle of equality has become the template of philosophical debate since the early 1970′s. The debate has largely taken place at Harvard, but with an intriguing Zionist influence. It began with John Rawls’ paradigm-shattering book, A Theory of Justice (1971). Almost two centuries after the writing of Immanuel Kant, the same humanistic theory burst on the scene but with an economic twist, namely the non-ethical concept of incentive or self-interested action. As is often the case, the fusion of independent physical or mental elements can produce a sudden spurt of energy – in this case, of Kantian moral thought merged with an economic version of self-interest.

Rawls’ book changed the face of American moral and legal thinking. Yet it undoubtedly has its roots in Genesis 1:26, the creation of Adam in God’s image, and the evolution of that idea in the work of Immanuel Kant. Rawls assumes that the principles of justice* binding on all humanity* should be based on the choice rational* people would make behind a veil of ignorance. All three asterisk indicate problematic terms – justice, humanity, and rational choice.

First, the concept of justice represents a middle point between Kant’s theory of morality (1785) and his theory of law or Right (1797). The theory of morality is based on the ability of a human being to prescribe a universal law for himself and for humanity, as I have discussed in earlier posts. This law is generally called the categorical imperative or the principle of treating human beings as ends in themselves, and never as a means to an end.

As for the second prong in Rawls’ thinking I refer to Kant’s view of ‘law or Right’ to underscore the distinction between two concepts of law that gets lost in the English word ‘law.’ The positive version of law is a series of commands by the sovereign; the trans-positive conception hold that the law consists of a set of value-correct, binding principles. When we speak of the ‘rule of law,’ we might mean either the former or latter conception of law. According to the former, Apartheid was consistent with the rule of law; according to the latter, it obviously was not. If there were an English word for law as principle, it would be Right (analogous to Recht, droit, derecho, pravo, etc.)

The first point is that Rawls’ developed a theory of justice that captured the abstraction and universality of Kant’s moral theory but in way designed to generate practice rules of Right by which we could live in social society.

The second point signaled by * is that Rawls’ theory of justice applies to all of humanity. He was not interested in national borders or in loyalties based on family, friendship or community. Nor did he care about the boundaries of life – questions such as abortion, terminal care, or the rights of future generations. These limitations pose problems but Rawls’ effort must be appreciated under the restraints that made his breakthrough possible.

The final issue starred is that choices in the original position must be rational. It is at this point that Rawls introduces the theory of incentives. Rationality is self-interested but not in the sense of particularized self-seeking advantage but rather an abstract self-seeking the welfare of humanity.

Rawls posited that rules of justice chosen under these conditions would be ‘fairly’ chosen.’ He called his theory ‘justice as fairness.’ He was probably not aware that it is virtually impossible to translate the latter word into foreign languages. Fairness is an expression of the sporting culture dominant in the English-speaking world. To render the notion of ‘fair trial’ in a foreign language you have to rely on the word justice itself, e.g. un proceso justo in Spanish. Thus unless ‘fairness’ is adopted as a loan word, his title is unfortunately translated as “Justice and Justice.” This theory requires the distinctively American idea of fair play and fair procedures for making decisions.

With these explanations, we can understand the compact sentence: Rawls assumes that the principles of justice* binding on all humanity* should be based on the choice rational* people would make behind a veil of ignorance.

Let me return now to our point of departure in Genesis: God creates Adam in God’s image and likeness. Rawls thinks of himself as a secular philosopher, but you can see in this idea of choosing principles of justice behind a veil of ignorance a merger of the disinterested Divine and the self-seeking human. The rational agent choosing principles of justice is blind about self-interest but omniscient about the welfare of the human species. Implicitly, the rational agent does not gamble. If risk-taking were permitted, the thought-experiment might justify a roll of the dice resulting in discrimination or even slavery for a few (so long as the likely benefits for winners widely outweighed the possible costs for losers).

The specific principles we would choose behind the veil of ignorance, Rawls argues, is first: a maximum amount of liberty for everyone compatible with a like liberty for all. The very formulation of this principle is reminiscent of Kant’s formulating the categorical imperative as a maxim of action that can be universalized and made applicable to all. So far as this principle goes, Rawls is on relatively safe ground – provided we leave out all issues concerning nationality and other boundaries. Liberty for all means just that – no preference for our people over theirs. The only possible mistake that Rawls makes is to include security within the notion of liberty, thus he seems to be willing to justify preventive detention – sacrificing liberty – to protect the security of the majority.

This is the point in Rawls’s thinking where economic theory takes hold. Liberty is an abstract good but economic and political resources are tangible resources (TR) subject to being traded in a free market. There is no market in liberty but there is a market in TR. Indeed if we add the social institution of money, there is indeed a world-wide market. If the world’s assets are distributed equally among all living creatures and trading begins, the immediate result would be inequality. If you bought gold or short sold the British pound (as George Soros did in making his fortune) your wealth would increase or decrease immediately. There would be smart traders and rash traders, a growing gap between rich and poor.

Thus Rawls astutely recognizes the possibility of an equal. distribution of liberty but a “difference” principle that applies to social and economic goods. In his second principle of justice the difference principle implies that economic and social inequalities are acceptable so long as the opportunities of wealth are open to all and the unequal distribution benefits the groups least well off. You can imagine how paying CEOs more might benefit the guys in the mailroom. But the error, it seems to me, is one of degree. How much more should I be able to earn than my assistant at Columbia receives. We do not quite realize this, but American society displays shockingly graduated pay scales that are compatible with Rawls’ difference principle. . Although there is plenty in Rawls to argue about, there is no doubt that “A Theory of Justice” is a work of genius. It had an enormous impact on my own thought. A year later, in 1972, I published an article based on Rawls that established my academic career. The title will sound familiar: ‘Fairness and Utility in Tort Theory.’ Essentially, I picked up on the inclusion of security within the notion of liberty and argued that we are all entitled to equal security provide a like protection for others. This premise has vast implications on tort law – i.e. compensation for accidents.

More interesting is the way the subsequent academic conversation developed. The first reaction came from Robert Nozick, also in the Harvard Philosophy Department. He objected to what appears to be Rawls’ claim that individuals choosing the principles of justice do not own their own selves – their genes, their talents, their ambitions. Nozick’s challange was to shift from abstract egalitarianism to the sanctity of individual rights. To keep in mind the connection to Genesis, the question was and remains whether Adam created in the image of God represents all of humankind or is a concrete person. For Rawls, Adam rerpresents all of humankind; for Nozick, Adam is each and every one of us.

In Anarchy, State, and Utopia (1974) Nozick brilliantly argued in favor of individual rights in a minimal state. These rights included tangible resources as well as liberty and security. He allowed himself to assume that there was at some historical point there was a just distribution of TR. The transition from this ideal state to the current state of maldistribution would be acceptable if it occurred by one of three means – creative labor adding to the stock, voluntary transfer, or judicial compensation for harm suffered. His three categories correspond to the current law school courses of real and intellectual property, contracts, and torts. His dovetailing his theory with conventional legal categories speaks well both of Nozick – never trained as a lawyer – and the philosophical rationality of the law school curriculum.

Nozick thought of himself as a right-wing reactionary because he had no objection to Wilt Chamberlain’s acquiring a massive fortune simply by virtue of fans’ paying for the right to observe his playing basketball. If people voluntarily part with their money to enjoy a good game, why not? His system is perfectly compatible with the Marxist principle that we should all own the fruits of our labor. In fact he was not particularly right-wing because he did not seek to justify inheritance – one of the major source of inequality in modern capitalist societies.

In order to justify inheritance or family wealth we need to take a slightly different route. It is at this point that we find an intersection between moral philosophy and Zionism. Lots of other players come into the story – Avishai Margalit, Yuli Tamir, Michael Walzer. The point of intersection in the 1980′s was David Hartman in Jerusalem. Virtually everyone affected by Hartman fever began writing in areas that seem in hindsight to reflect the liberal Zionist search for a union of the universal and the particular.

When I first told Hartman that I was working on Kant’s moral and legal philosophy, he challenged me: “Don’t you know that Kant cannot explain the idea of covenant.?” Indeed Kantian theory could not. This was the missing link in the history of ideas that lay between the egalitarianism of Rawls and the individualism of Nozick.

There were many attempts to fill the gap. Walzer and I started a journal, together with Hartman, called S’vara (1990-93), which I shall discuss in the next installment. I was also moved to write a book, ‘Loyalty: An Essay on the Morality of Relationships’ (1992), which challenged the universalism of Kantian theory.

The more telling impact was on the third of three Harvard philosophy professors in this story, Michael Sandel. He wrote ‘Liberalism and the Limits of Philosophy (1982), in which he challenged both the coherence of an abstract universal self posited by Rawls and the loss of imagination reflected in Nozick’s tying social justice to the concrete individual. He introduced the middle category of a ‘situated self.’ This, I dare say, is a liberal Zionist idea. It reflects a desire to link a universal justice-seeking spirit with the reality of national identity.

As a critique of Rawls, however, Sandel’s argument underwhelms. The master himself admitted that his theory was purely hypothetical. Yet Sandel is clearly the most influential of the trilogy I have discussed. He has gone on to a brilliant career teaching in a course called ‘Justice’ attended by about a thousand Harvard undergraduates every year. The course is available online and I strongly recommend it. It should not be surprising that the structure of the course is: From Rawls to Nozick to loyalty.

This journey to understand the meaning of creating Adam in God’s image has taken us on a tour of contemporary moral philosophy. The sheer variety of arguments generated by the philosophers testifies to the legacy of Genesis 1:26 in our humanistic culture. There is one chapter left: the possibility is that the essence of Adam consists in reason alone – a Hellenistic concept that holds out a challenge to the culture of revelation.

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George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia University School of Law.

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