EJ the important blog commenter sent in the following guest post. I will offer a little intro on Rawls and then blog his comments. This is one of the pillar’s of EJ’s thought along with certain parts of Lacan. A yearning for a more Rawlsian halakhah.
The Harvard ethicist John Rawls was required reading in ethics, politics, law school for decades and was treated as open of the starting positions for political and juridical discourse. He offered a humanistic Kantianism based on equality, fairness, and justice. For many, it was a natural synthesis with Telshe, Brisk, or Maimonides. Rawl’s Theory of Justice (1971) was based on defining justice as treating others with fairness. Fairness was to be decided from what he called the “original position,” one makes decisions without knowing where in society one would fall. One created abstract principles of fairness not knowing where you would be in society. (For Kant, transcendence means beyond what our faculty of knowledge can legitimately know).
John Rawls’ Method
We are to imagine ourselves in what Rawls calls the Original Position. We are all self-interested rational persons and we stand behind “the Veil of Ignorance.” To say that we are self-interested rational persons is to say that we are motivated to select, in an informed and enlightened way, whatever seems advantageous for ourselves.
To say that we are behind a Veil of Ignorance is to say we do not know the following sorts of things: our sex, race, physical handicaps, generation, social class of our parents, etc. But self-interested rational persons are not ignorant of (1) the general types of possible situations in which humans can find themselves; (2) general facts about human psychology and “human nature”.
Self-interested rational persons behind the Veil of Ignorance are given the task of choosing the principles that shall govern actual world. Rawls believes that he has set up an inherently fair procedure here. Because of the fairness of the procedure Rawls has described, he says, the principles that would be chosen by means of this procedure would be fair principles.
A self-interested rational person behind the Veil of Ignorance would not want to belong to a race or gender or sexual orientation that turns out to be discriminated-against. Such a person would not wish to be a handicapped person in a society where handicapped are treated without respect. So principles would be adopted that oppose discrimination.
Likewise, a self-interested rational person would not want to belong to a generation which has been allocated a lower than average quantity of resources. So (s)he would endorse the principle: “Each generation should have roughly equal resources” or “Each generation should leave to the next at least as many resources as they possessed at the start.”
John Rawls’ principles of justice.
Rawls argues that self-interested rational persons behind the veil of ignorance would choose two general principles of justice to structure society in the real world:
1) Principle of Equal Liberty: Each person has an equal right to the most extensive liberties compatible with similar liberties for all. (Egalitarian.)
2) Difference Principle: Social and economic inequalities should be arranged so that they are both (a) to the greatest benefit of the least advantaged persons, and (b) attached to offices and positions open to all under conditions of equality of opportunity.
Source here
For those who want more – here is the Stanford Encyclopedia of Philosophy on Rawls.
EJ’s post
I find these five ideas useful in stating my moral complaints against certain types of Orthodoxy. I could probably organize a moralizing blog explaining why and how Jews are screwing up their future by everyone trying to get an edge on the other guy.
(1) endorsement of a morality defined by interpersonal relations rather than by pursuit of the highest good; (2) insistence on the importance of the separateness of persons, so that the moral community or community of faith is a relation among distinct individuals; (3) rejection of the concept of society as a contract or bargain among egoistic individuals; (4) condemnation of inequality based on exclusion and hierarchy; (5) rejection of the idea of merit.
Enclosed are 3 recent examples where I try to adapt Rawls in a comment.
1…R. Maryles…If you want to give up racism you have to give up the idea that others exist for the sake of frum Jews. Let’s not even talk about blacks…you don’t even see the 12 million Jews who are not Orthodox as ends in themselves. Their tachlis is to become frum through kiruv. As Rashi says, God created the world bishvil yisrael shenikra rashis, and yisrael in your theology equals Centrists..
Human beings don’t exist for the sake of confirming anyone’s beliefs. They are ends in themselves and are to be treated as such.
I can’t say this Kantian idea is the correct hashkafah, that’s for rabbis to decide. But if you reject this idea, if you believe the world is structured as a hierarchy, to the point where this hierarchy is an adequate reason for acting, then you have no systemic grounded way to confront racism.
2…R. Maryles…Hillel said, “That which is hateful to you, do not do to your fellow.” Many here seem to agree they don’t want Lubavitch mucking about with their own kids or with other kids from their stripe, like the bocherim in YU. The solution is not to turn around and do something that Lubavitch will find unpleasant.
A group proselytizes when they think the children are a davar shel hefker, i.e. the parents do not have the exclusive right to raise their children in accordance with the parents ends and values. Orthodox hold it is a mitzvah to be mekarev non-orthodox kids; they and their parents are tinok shahnishbas and because of their ignorance of the truth, the parents have no legitimate say in how their children should live. Centrists also feel they have a right to be influence young charedim to become more centrist…go to work, join the army, get a secular education. Charedim, rosh yeshivas feel it is OK to turn MO students into Charedim. But when some group like Lubavitch feels they have the hegemonic rights of turning klal yisrael into Lubavitchers, and then come into Centrist or Charedi communities, many, maybe most, are up in arms. You don’t die from a contradiction, so maybe this is just the way it is.
This entire mess comes from treating people as means. Each and every person and certainly each and every Jew is an end in himself, and his freely chosen values ought to be respected. When two people meet, each viewed as an end in themselves, kiruv is not unidirectional. Like all human interactions both parties can change. ”
3…XGH… This is how I see your problem. You are caught between two poles, neither of which are acceptable. You feel Torah is not real in some common sense plus empiricist conception of the real. Take that as a starting point. You also feel Torah is not imaginary, it’s much more than a novel by Dickens. How to take hold of the middle, what Lacan calls the symbolic world, the world of society, law, tradition, language. These are social constructs. Even if not real-real, they are kind of important. Try not paying your taxes or lying to the bank. We live in this symbolic world. Death, physics dog shit (to use some of Lacan’s examples) are real, but who would want to embrace only this world.
So the task is how to make a symbolic world, like the world of Judaism, justified in some transcendental way, or noumenal way? This was in effect Kant’s problem about morality. All through the 19th century Jews remained neo-Kantians, the most famous being Hermann Cohen, the subject of RJBS’s dissertation. Today Rav Kook, pantheism, Rav Nahman, Art Green, and kabbalah are in, Kant is out of favor.
An article that I found moving, and is in a Kantian mode is this one about the young John Rawls and his religion. The Christian part is clearly marked and not essential. Even without knowing much about his ideas, I think it can be understood.
The Book of Doctrines and Opinions: 
A few observations to help EJ flesh things out:
1 I really really do not like the conflation of Lacan’s symbolic with Kant’s distinction between Noumena and Phenomena. It is obvious that the two are incommensurable without some kind of synthesizing operation which Mr. EJ has declined to provide. Kant says we need to believe as necessary postulates of practical reason in the eventual harmonization of nature and the good. EJ is right to tie this to Kant’s rejection of the false dichotomy of metaphysics on one side and his rejection of pure empiricism on the other. Those of us who have read Kant will now ask what the hell this has to do with Lacan.
2 EJ is overstating the case of means/ends. Convincing someone of a given norm by force of argument is not indicative of treating them as mere means to an end. It is not instrumental rationality all the way down but the opposite as we see in the Habermasian distinction between means/ends rationality and communicative rationality. You need to make a case of why learning Tanya in the YU BM is not the latter. I am not convinced.
3 Conflation of Second critique Kant and Rawls is really unclear. Rawls is not about conditions of agency tout court in the same way as Kant. How would a full blown neoKantian Halacha look? Do not take Rawls at his word and ignore the very suggestive literature on second critique Kant of Longuenuesse and others. The stakes are really raised into Kant’s fourth question (“What is man?”) and, as Max Scheler points out, we do not always get the same as the Biblical answer. So its not just going to be a cute discourse of original positions and how do we act slightly more egalitarian. Its going to be a real full fledged question of who the **** am I?
4 I think the statement about very wonderful people like Professor Green is a bit of an overstatement. People reading his books on R Nahman are not going to be your main obstacle here.
I really hope Mr. EJ can respond and clarify his position and that I have not been too dismissive of a serious albeit unfinished effort to do some heavy work on Halacha and fairness.
I’m not clear on why you are trying to get to Kant via Rawls. Presumably the advantage of sticking with Rawls is to dispense with metaphysical foundations of rationality and go from there. Aside from the use of the original position to determine principles of justice, there is much emphasis on actual deliberative processes. I’m not sure what the internal implications are supposed to be for halakhah or orthodoxy.
I think construing kiruv as using people is a bit much. While the attitude does exist, it’s really not as bad as you make it out to be. Same with the racism. Most Orthodox Jews – at least in my own anecdotal experience – don’t think the “tachlis” of the non-frum is to be frum.
Oh, chakira made my point for me (in 2). To him, I’d say, if you take EJ at his word that the people learning Tanya are trying to confirm their own beliefs by converting their students, then he’s made his case. But I think it’s different with different kiruv people.
Presumably, as AS points out, the attraction of using Rawls is to get to a rational, non metaphysical ethic. I assume you argue for that from an ethically utilitarian way, i.e., you desire to argue for a more egalitarian ethic, for, for example, totally banning racism out of Orthodox Judaism.
However, in ultimo, I think that any religious system will reject Rawls’ anti-metaphysical understanding of the society. We do see value, each in his own tradition, in allowing individuals to open their eyes to Truth, even as different groups disagree on what that Truth is. Orthodox Judaism definitely sees the nature of man quite differently.
Where Rawls may be more compatible with OJ, and more fruitfully applied, is in the more limited, but still vast area of the biblical covenantal foundational values of tzedaqa umishpat. Those wouldn’t include our attitude to kiruv (unless someone is abusing his students), nor the question of what man’s tachlis is, but it would very much apply to basic notions of societal equality. Racism is surely to be condemned based on those principles. Likewise, I surely fail to see how vigilante “justice” or forcing some nokhrim out of their Tel Aviv home can be in the category of tzedaqa umishpat.
By that standard, I concur with @Jon’s comment of 2:32am.
However, in ultimo, I think that any religious system will reject Rawls’ anti-metaphysical understanding of the society.
Rawls presents a compelling picture of a what a pluralistic democratic society looks like. He does not want to dispense with various religions’ foundational sources of meaning for their adherents but insists that public rationality be determined via concepts and procedures that are shared among people of diverse belief. The other options for how to understand a pluralistic democratic society, such as the RW evangelical/ Meir Soloveichik belief in America as Judeo-Christian country leads, imo, to anti-democratic outcomes.
It is worth reading Political Liberalism before claiming why religious peoples would reject Rawls.
I’m curious as to what basic notions of social equality emerge from the Bible such that one could supply Rawlsian procedures to secure those outcomes. Radical redistribution of wealth? Democratic deliberation as the procedure for determining social structures?
My post is narrow and consists of 5 ‘useful ideas’ found in Rawls, (see the Nagel/Cohen article), and then three comments where I explore how these ideas can be used in moral criticism. I am not offering an alternative taamei hamitzvot, or any super halacha that should guide halacha. A deduction of taryag mitzvot from some original maamad har Sinai is far from obvious , though as Rabbi Folger points out some mitzvot do fit quite naturally. I am also not claiming that halacha is the best or even close instantiation of the particular conception of justice found in Justice as Fairness.
What I have in mind is using these ideas in the day to day disagreements between religious and secular, and between one religious group and another. Here there is no common halacha or bais din, and to presuppose halacha as the guiding rules, prejudices the discussion in favor of the Orthodox. I don’t think these ideas will settle all disputes. Many will cite halachot and other rabbinical citations that cannot be ruled out simply by saying they are based on dogmas like revelation. What these ideas do, is pinpoint in a clear way what those outside the particular group find objectionable. It is helpful in discussing the issues of selective draft exemptions, subsidies for kolel studies, rights of Israeli Arabs, rights of Palestinians, the Orthodox ban on cooperation with Conservative and Reform, religious freedom in Israel for those not Orthodox, why chilul Hashem is a weak reason for obeying laws, financial and sexual corruption…and more. (And btw a good part of the obstacle in many of these cases are the Israeli secular who refuse to commit to a constitution or basic understanding of what we mean by a Jewish state. For them everything is always negotiable subject to a quid pro quo.) Using the above ideas gives us answers that are close to OUR secularly influenced sense of right and wrong. Let’s be honest. More often than not when a halacha generates an answer that goes against our current moral intuitions, we give the halacha such a narrow reading that it ends up more or less compatible with our intuitions. We have more than halacha governing our sense of right and wrong.
A second large issue raised by the first of these basic ideas is the Rawlsian claim that it is far better to define the good as constrained but not defined by what is right and wrong, than to think of right and wrong as maximizing some highest good. Theology usually thinks of some desirable goal, and then thinks of mitzvot as helping us reach that goal. Maimonides and MO Maimondeans use a teleological conception of the good as a basis of mitzvot. So does kabbalah. Such ideas naturally lead to hierarchical societies, and away from the Rawlsian conception that our telos is to work for and sustain a decent society, where people can choose their ends and are not used for the sake of others; and that the principles defining such a society are justified in some way other that their relation to the summa bonum. Yissachar and Zevulun entered into a voluntary agreement based on their common ideas of future rewards. Yissachar didn’t use the tax system to coerce Zevulun to share his reward, even if it would create more kedusha and yiras shamayim.
I cannot at this point in time, primarily because of my ignorance, answer many of the serious objections raised by the thoughtful comments. In particular
1)are the claims made in the above paragraphs correctly attributed to Kant as well as Rawls, why invoke Kant and so on? We know Rawls reads Kant as a social contract theorist, but is such a reading mandatory? When Issac Breuer extolled Kant as a basis for Orthodoxy he didn’t know about Rawls and I doubt if he knew of Kant’s later works such as The Religion Within the Limits of Reason Alone and his Anthropology. Kant eventually gets around to offering a fairly detailed Kantian halacha. My impression has always been that the Kantian edifice is more than the formalism of the categorical imperative.
2) I used Lacanian terminology to illustrate how I think anti–Orthodox blogs get stuck, and the need to explore a temporal conceptions of kabalas hatorah. Chakira is quite right in saying that a shiduch of Lacan as a whole with Kant fails even as starter marriage. 3) Exactly what is a transcendental deduction, and how could it be used to justify the 5 ideas? Why would such a deduction generate a construction or set of principles that are a temporal, thus speaking to one of the main thrusts of biblical criticism? All I can say is that it should be a lot easier than trying to justify 613 specific mitzvot. There are answers to these questions, but you need a knowledge of the entire Kant-Rawls corpus plus the secondary literature before you can say much more, and have a chance of getting it right.
By endorsing Kant’s restrictive ideas about the centrality table of the categories and their ahistorical nature you have kind of set yourself against the entire Hegelian project and provided us with a vision of Kant that most contemporary scholars find philosophically weak and indefensible (cf. Pippin, Hegel’s Phenomenology of Spirit, Satisfactions of self consciousness). Most accounts of Kant today try to loosen up the table of the categories and many philosophers see the third critique as the failure of just this kind of first critique Kantianism where Kant himself realizes that the claims of the deduction are not going to fly and then attempts to give himself a way out.
What I have in mind is using these ideas in the day to day disagreements between religious and secular, and between one religious group and another.
This is not a chiddush in Ralws. Read Political Liberalism where he discusses the constraints of public reason. The whole reason why we don’t invoke our parochial conception of the good in deliberative democratic processes is because it has no normative force in the realm of public reason. But most people committed to pluralistic democracy already get this. It is people for whom democracy is only a convenience that keep invoking God, Halakha, Gedolim, Jesus, Allah, etc. to direct public will.
I am talking about the pragmatics of these discussions. I claimed kiruv (as opposed to chizuk ) is using people as a means. Putting aside if I overstated my case, my talking about means/ends changed the conversation. It depends on the kind of kiruv, it’s communicative rationality, the burden is on me to show it’s manipulative, all valid points. But no one came back saying what’s the problem, the entire creation is for the sake of Jews, bisvil yisrael shenikra rashis, and Orthodoxy is the only legitimate version of Judaism. Even R. Maryles who commonly makes such claims, began talking how he respects everybody etc. Once the perspective, the language changes, ideas that are deeply ingrained become strangely inappropriate. Similar changes occur when there are discussions of mechiyas amalek, eved kenani, women rabbis. Change the language to ethnic cleansing, slavery, women’s capacities and the conversation moves along differently. And the reason is that our moral intuitions at this point, at least until we get deep inside charediland, are no longer purely halachic, and are more or less modern.
The Rawlsian method of reflective equilibrium is part of a post Rorty world, where there is no final language, no a-temporal morality that lasts for eternity. Even if our intuitions would be far from obvious in the ancient and medieval worlds, and even if we may change our minds once again after an apocalypse or the messiah, the claim that in our present conceptual scheme we ‘know’ slavery is wrong remains in place as part of the pragmatics of moral discussions.
Am I still setting myself against the entire Hegelian project? Don’t I qualify at least as a Pittsburgh Hegelian wanna be? Or must I whoosh along with an ever morphing geist, not man, not God but a little of both. More seriously I hope we can come back to some of the issues raised about Kant etc. at a later time. I am still feeling my way into this topic.
Pitt Hegel would still take seriously Hegel’s strained relationship to the transcendental deduction, would they not?
I am not advocating Charles Taylor Hegel; I am saying the Hegel of Pippin, Brandom, Pinkard and other mainstream interpreters. Pippin invented the idea that much of the PhG project is directed at historicizing and opening up the categories.
More seriously I hope we can come back to some of the issues raised about Kant etc. at a later time. I am still feeling my way into this topic.
I agree.
EJ- Looking over your post, I concur with AS that you seen to be creating a theory of liberalism, Many thinkers from Hobbes and Locke, to Kant, Hegel, Rawls, to Hannah Arendt or Judith Butler could have been used. As I was posting it, I was thinking that Political Liberalism was the work you should be discussing not the early essay.
I also think that the various parts of the discussion need to be separated and discussed separately. (1) Contract (2) equality and liberalism (3) a transcendental post-Kantian religion and the one that keeps coming up (4) law and ethics.
As you noted, Hermann Cohen and his many followers used to be a given in Judaism. This is one of the serious blind spots of Centrism in that they cannot see outside the law and they quickly lose the discussion.
I could answer in greater depth but in the meantime, you may want to see the brand new essay by Daniel Statman. I think that it has many begged premises specific to the 1980’s of morality and halkhah that if teased out would allow Rawls or Locke in.
http://etext.virginia.edu/journals/tr/volume6/number1/TR06_01_statman.html
Maybe I will return to Statman next week.