The Tyranny of the Ideal
Page 25
The Rules of Mice Book has only two rules:
1. Squeaky mice are not allowed to be in the Red Barn
2. Squeaky mice are not allowed to be in the Yellow Barn.
Other participants were given two permission rules:
The Rules of Mice Book has only two rules:
1. Squeaky mice are allowed to be in the Red Barn
2. Squeaky mice are allowed to be in the Yellow Barn.
We had a third, mixed condition with these rules (counterbalanced for order):
1. Squeaky mice are not allowed to be in the Red Barn
2. Squeaky mice are allowed to be in the Yellow Barn.
All subjects were then asked whether mice were allowed in the green barn. Because rules typically call for action and so a rule follower must make a decision, in this experiment subjects were forced to take sides, requiring them to answer on a six-point scale,103 from “Mice are not allowed in the green barn” to “Mice are allowed in the green barn.”
Our hypothesis was that subjects trained on prohibition rules would infer the Principle of Natural Liberty as a closure rule, while those trained on permissions would infer a Residual Prohibition Principle. This was based on the supposition that learners suppose that their teachers are seeking to be efficient; the cases that are called to their attention are critical for understanding how to, as Wittgensteinians would say, “go on from here.” Thus, if the closure principle is Natural Liberty, the teacher should provide examples of prohibitions, for those are what you need to have pointed out to you. If the closure rule is the Residual Prohibition Principle, the teacher should point to permissions. Note in this experiment subjects cannot be understood as guessing what a missing rule might be; they know that this is the complete set of rules, so they are being induced to directly postulate a closure rule for the system. Interestingly, this means that a closure rule cannot be part of the system. The Rules of Mice contain only two rules, and a closure rule is not among them. They are thus not being taught a closure rule, or even instructed that there is one. Nevertheless, as we predicted, subjects did indeed tend to infer closure rules in the expected way: those trained on prohibition rules tended to infer that the mice are allowed in the green barn (as implied by the Principle of Natural Liberty) while those trained on permission rules tended to infer that they are not (as is implied by the Residual Prohibition Principle). In this task, responses in the mixed condition also differed from chance, with participants being significantly more likely to think that the new action was allowed when given an example of one prohibition rule and one permission rule.
Both closure rules can thus be taught. That subjects inferred the Principle of Natural Liberty even when they were told that the rules were complete (and the rules stated did not contain a closure rule) suggests that, pace the weak interpretation of the All Liberal Liberties Are Specifically Justified Principle, they did not see Natural Liberty as one of the rules of the system. Rather, they tended to see closure rules as operating on a complete system of rules that renders the system decisive. So far from being taught, they have grounds for concluding that it cannot be part of the Rules of Mice, yet they employ it.
2.3.3 Moral Decision Making in the Open Society. Both closure rules can be taught. If a morality is largely taught in terms of prohibitions people tend to infer the Principle of Natural Liberty, while teaching through permissions inclines them to the Principle of Residual Prohibitions. There is some tendency to infer Natural Liberty in the face of mixed teaching. Now there is a decisive advantage to teaching a public constitution focused on prohibitions and, so, the Principle of Natural Liberty. The very essence of an open society is that new perspectives are arising, which categorize actions and the world in new ways. As new act-types arise (i.e., those that are not categories in the original set of rules), a Residual Prohibition morality will sort them into prohibitions: act-types that are not on the list of the permitted are prohibited. Thus new ways of acting are morally prohibited. To be sure, eventually the system might be revised so that these new act-types are specifically sorted into, say, the permitted category, but that process of explicit revision will be relatively slow and will never comprehensively categorize all the new act-types that arise in dynamic societies. A residual prohibition system is thus conservative even if it enumerates extensive liberties: it will have great difficulty adapting to new environments, in which the social or individual value of engaging in certain action types fluctuates. Such a public moral constitution may be suited to a closed liberal society, but not an open one (§IV.1.4).
It might be thought that a residual prohibition system could cope with the emergence of new act-types through analogy or similarity. This is, indeed, a way in which change occurs in rule systems: a new type of action is reinterpreted as akin to some familiar one that is covered by an existing rule. In 2015, for example, the United States Federal Communications Commission categorized some activities of cable companies as public utilities,104 thus drawing cable companies’ provision of Internet services under rules originally designed for telephone providers. In similar ways, “blogging” can be categorized as publishing, “cyber-terrorism” as violence. And therein lies the problem. In all these cases the extensions of current categorizations are uncertain and controversial. There is real disagreement about these matters, and that is why centralized authoritative bodies such as the Federal Communications Commission make authoritative (and often highly controversial) rulings. In the informal system of social regulation that is the heart of our public moral constitution, when the Residual Prohibition Principle is operative new act-types are thus either simply prohibited (and so the morality is conservative) or are reinterpreted by individuals, thus rendering the scope of the rules highly uncertain, and so undermining their decisiveness.
In contrast, a public morality of natural liberty will sort new act-types as permissible; one is free to engage in a new type of action that is not covered by existing prohibitions. To be sure, systems of natural liberty are not immune to disputes about how to categorize new actions. Consider a rule that was clear in, say, 1980: one has the right to control information about (legal) activities that occur in one’s own home. Others are thus prohibited from obtaining and using this information for commercial purposes without one’s consent.105 As the new action type of web browsing arose, and Google can use information about one’s browsing history (that in one way is) “on one’s home computer” to select ads for future viewing, some argue that this new act-type should be included in the older prohibition against “commercial spying,” while others resist this analogy.
There is, however, a critical difference between the two systems, even in the face of uncertainty and dispute. In a natural liberty system, if a moral innovator does not conclude that the analogy holds, he will conclude that morality allows his innovative activity; in a residual prohibition system, unless the innovator concludes that a relevant analogy holds—that the new action type is analogous to a permitted type—he will desist. It is in this sense that a natural liberty system encourages experimentation and discovery. Moral experimenters—those who are exploring a new perspective on justice—need not first convince themselves that a new action type falls under a previous permission; they proceed as long as they do not conclude that the new type falls under a current prohibition. Given that in many circumstances any analogy to previous types of action will be very imperfect and so uncertain, this asymmetry is of great significance, freeing innovators from proving (to themselves) their freedom to discover.
It may seem that a public moral constitution rejecting the Principle of Natural Liberty could avoid the conservatism implicit in a residual prohibition system by appealing to:
The Proceed with Justification Principle: If one is engaging in some new action type γ for which there is no current permission in the system of moral rules, one may γ if and only if one can justify γ-ing to others.
For some, this may be a Kantian public reason principle, in which one justifies γ-ing to
all free and equal persons; to a utilitarian it could be a principle that allows new activity to be justified by appeal to the general welfare. In environmental thinking, this could be a version of the “precautionary principle,” which allows new action when a clear case can be made that its benefits exceed the costs. All such views might insist that, by including this general principle within the system of rules, a residual prohibition system can be dynamic, allowing those new act-types that are justifiable, useful, and so on.
The Proceed with Justification Principle clearly lacks a sort of epistemic decisiveness; it is often extraordinarily unclear how these calculations are to be made. While, perhaps, in theory Proceed with Justification might have a definitive answer, it is most unlikely that people will be able to coordinate on it. At least from the perspective of our public moral constitution, and its aim to coordinate normative and empirical expectations, inclusion of such a principle scores badly on the functional desideratum (§IV.2.1.3). And in some cases, given our current information there may be no determinate answer we can reach, and so an even deeper idea of determinacy is violated.
Still, it might be thought that the costs in determinacy entailed by accepting the Proceed with Justification Principle are exceeded by the benefits. The benefits, however, are not great—even with the addition of this principle, moralities of residual prohibition remain hostile to the Open Society. As we saw earlier (§IV.1.3.2) much innovation depends on planning, but often enough innovators cannot justify their innovative activity, not only because they have little idea of its consequences, but because they have little idea of just what they are doing. A classic example is Alexander Fleming’s discovery of penicillin; when he noticed a “blob of mold” when cleaning out his Petri dishes, he did not know that he was about to discover penicillin.106 As Fleming remarked, “One sometimes finds what one is not looking for.”107 Fleming may well have been unable to justify his experiments that led to discovery of penicillin, because he did not know that was what he was doing, and no one could have known. There is no logic of discovery; some innovators seek a result and achieve something in the neighborhood, others find something entirely different, and others are not quite sure what they are doing or why they are doing it. If, before proceeding with their innovative activity the innovators must justify it, very often the justification will not be forthcoming, as they have no clear idea of what it is that they are trying to justify. And, if so, the Residual Prohibition Principle will once again come into play, with its conservative implications.
The public moral constitution of the Open Society, then, is largely a morality of prohibitions and requirements, for such a morality allows individuals maximal opportunity to explore novelty and diversity, and so explore their perspectives while still possessing a shared moral constitution—a common public world—via which they can coordinate their activities and advance claims against each other employing public rules and categories. This is not to say that permissive rules have no place, much less that all schemes of prohibitory rules provide adequate moral constitutions for an Open Society. It is to say, however, that the formal features of moral constitutions matter much more than many contemporary liberals have realized: some formal structures are much more hospitable to diversity per se than others.108
2.4 Reducing Complexity through Jurisdictions
A diverse society is, by definition, composed of heterogeneous agents—agents with different understandings of the social world, their options, and their values. On what I dubbed the “vector” account of justice under diversity, the moral constitution of a society is a resultant of the specific set of perspectives in that society (§IV.1.4). Because a moral constitution is tightly coupled with a specific set of perspectives, changes in that set have a strong tendency to produce changes in the public moral constitution. Consider, for example, a moral constitution that is the product of a bargain between all members of a society; each member bargains with the N − 1 other members, with the result being a specific moral constitution. This combination of heterogeneity of participants and holism of the bargain (everyone has some claims on everyone else) renders the system highly complex; a change in any perspective is apt to reverberate throughout, at a limit, changing all bargains and surely the public moral constitution as well. Complex systems exist between order and randomness.109 While they operate on general principles and some system states are possible while others are not, complex systems are exceedingly difficult to predict, and overall system states can be extremely sensitive to changes in the constituent heterogeneous elements.
Although we cannot eliminate complexity from networks of heterogeneous interactions, we have powerful reasons to seek to reduce complexity and secure a social order that provides relatively stable frameworks for interactions. As I have argued, this is necessary for an open society (§§IV.1.3–4). Confronted by diverse evaluative standards (or, more generally, perspectives), we could seek to commensurate them by a Sen-like aggregation system or via some sort of bargain; both methods commensurate, but they do so in a way that tends to tightly couple the social outcome to the existing sets of perspectives. The opposite approach is to decouple the perspectives, and so lessen the complexity of the system, so that changes in one do not automatically induce changes throughout. What I have elsewhere called “jurisdictional rights” serve this function.110 Rather than seeking to construct “a system of assessment that enables diverse interests to be brought together in a field of calculation,” this method aims “to keep them apart, in order to simplify the basis for decision making.”111
In effect, we say that in a society with n individual members, there are n separate spheres in which an answer … may be sought, each of which is, in theory, inviolable and particular to the individual who occupies it. A decides for himself what he should believe; B decides for herself; and so on. … In other words, we don’t approach the matter of “basic belief” as one which … requires that individuals’ judgments about this matter be aggregated (perhaps after normalization), with some one (collectively best) option binding on all. We see it, rather, as one which is devolved to individuals whose rights to decide the matter for themselves are scrupulously protected.112
Jurisdictional rights reduce complexity by decoupling the public moral constitution from changes in perspectives, allowing high levels of change in some perspectives without affecting the shared public world.
Consider again the example of religious accommodation (§IV.1.3.2). On one understanding of effective religious accommodation, a society is confronted with a set of religious perspectives (in Europe, traditionally Christian ones), and in many countries the accommodation took the form of a bargain—each religion ran its own schools, got a share of public funds, had representation on various national councils, and so on. We have here an example of what D’Agostino calls bringing the disputants into the “same field”; the result is to radically increase the complexity of the moral constitution. As the constituent perspectives recombine and fade away, and as new perspectives enter, continued application of the aggregation method will generate a constantly changing constitution (or else, more likely, the constitution will freeze the settlement at some past configuration of perspectives until the pressures for change overwhelm it). In contrast, jurisdictional rights to religious practice, teaching, and inquiry will be far more robust in the face of change just because, via separation, they weaken the linkages between the constituent perspectives and the common public world. And because of this, a moral constitution employing them is open to a wide range of new perspectives.
As D’Agostino points out, property rights and markets function in essentially this way.113 John Gray once noted, “The importance of several [i.e., private] property for civil society is that it acts as an enabling device whereby rival and possibly incommensurable conceptions of the good may be implemented and realized without any recourse to any collective decision-procedure.”114 Private property rights are quintessentially jurisdictional. To own property is to have a sphere in w
hich one is free to act on, and explore, one’s perspective. Property allows us to create small social worlds in which a perspective, or at least elements of it, can be instituted without negotiation with others, and to a large extent without taking other perspectives into account.
Socialism has been understood either in terms of all property being held by the state or, more attractively, the doctrine that “ownership is or ought to be in the hands of the people, not the state.”115 But in either case socialism is manifestly unsuited to the Open Society. The attempt to genuinely respond to diverse perspectives in making innumerable allocation decisions puts tremendous—and unsupportable—weight on social aggregation mechanisms. Given that allocation decisions require complex value trade-offs, nothing less than a comprehensive, implementable social welfare function is required: some way to produce either a social ordering or an interpersonally comparable social utility scale.116 Given diversity of perspectives, a social welfare function that did not normalize the world features element of a perspective could not suppose canonical descriptions of the state of affairs being evaluated (§IV.1.2.3). Not surprisingly, then, efforts to implement socialism have been accompanied by public ideologies that strongly normalize the admissible evaluative perspectives.
The importance of property rights does not entail that distributional questions (concerning opportunities, income, and wealth) have no place in the political life of the Open Society. The justification of property rights and questions of distribution go hand in hand: one cannot maintain the importance of the institution of property rights while denying that their distribution is a matter of political competence. However, we must recognize that ideals of distributive justice are part of particular perspectives on justice, and in the Open Society no perspective has a special claim to have its ideals legally instituted.117 Questions of distribution, like so much, are matters of democratic politics. A democratic polity in the Open Society must beware of undermining the moral constitution that renders a shared public life among diverse perspectives possible, but it has many tasks that go beyond maintaining this general framework.