According to John Rawls in his A Theory of Justice we have to get together once and for all and make the rules of operation without knowing our particular situation. (See here, here, and here for previous postings on this topic.) And once we make the rules, and then lift the veil of ignorance and find out our particular situation (our gender, age, abilities, skills, talents, health, community, position in society, wealth, income, educational qualifications, level of authority and power, etc.), we are not allowed to renegotiate to get more favorable terms for us. This restriction is important since it ensures that careful deliberation goes into making sure that the rules created are perceived as fair by all.
Let’s work through a specific simple case. People who are generally law-abiding would like to see laws and enforcement mechanisms that ensure their own safety and security and protect their property. If I belong to that category, I might want to advocate stern penalties (fines, imprisonment, harsh prison conditions, torture, even death) for law-breakers. But there is no guarantee that once the veil of ignorance is lifted, that I (for example) will be in the category of law-abiding people. It may turn out that I am actually a crook or have criminal intentions. Normally we would try and exclude crooks from the decision-making process because we have decided that they do not deserve the same rights as law-abiding people. But the veil of ignorance means that we cannot exclude people we disagree with in the rule-making process. I have to consider such possibilities as well when we agree to the rules.
So it is in my interest to make sure that the penalties for law-breaking are not too severe, since there is a chance that I may have to suffer them. Does this mean that crooks will prefer to opt for no penalties at all? No, because even crooks can function effectively only if they are the exception, if there is a general level of law-abiding behavior. After all, the executives who looted Enron and Tyco and caused thousands of people to lose all their savings could only do this because almost everyone else was behaving fairly honestly. This is why crooks can stash their stolen money in off-shore bank accounts and retrieve it later. If the officials in the off-shore banks were also crooks, the stolen money would not be ‘safe.’ Also if the other employees in your own company were not honest, the company would not make the amount of money that makes it worthwhile for you to steal it.
Even petty thieves could not function if everyone around them was also stealing from everyone else with no restriction. And since there is no guarantee that I will be the toughest crook around to fend off the other thieves, allowing for a totally lawless society could result in a terrible situation for me personally if it turns out (once the veil is lifted) that I am not very bright or strong or am clumsy with weapons. After all, there is no guarantee that I will be a skillful crook. An incompetent crook in a lawless society would fare much worse than one in a law-abiding society.
So it is in the interests of even crooks to create rules that encourage and reward honest behavior while ensuring reasonable treatment for law-breakers, just in case they get caught. So the two extremes (law abiding and honest people on the one hand, and crooks on the other) both have an interest in creating rules that balance the interests of both, since no one knows where they personally will end up.
What of the situation that triggered this series of posts, that of gay rights coming into conflict with certain interpretations of religions? Since the rules do not allow you to specify particulars, you cannot say (for example) that the Bible must be the basis for policy decisions. You would have to allow for the possibility for any religious text or that no religious text can form the basis. In other words, if the rules are to allow primacy for religion-based laws, you have to allow for the possibility that once the veil is lifted, you might end up as a Buddhist in a Judaism-based state or a Christian in a Hinduism-based state or you might be a gay person in an Islam-based state. If that should turn out to be the case, would you be content with the result?
Allowing for religious views to be the basis of regulating the private lives of individuals in a society also means allowing for the possibility that we might end up in a society run by groups like the now-defunct Shaker Christian sect, which advocated strict celibacy among its members. Of course, such a society would not likely last very long for obvious reasons (and the Shakers did, in fact, eventually disappear), but would we be willing to allow for this possibility?
Clearly the fact we could end up in any of these situations and have to live with it should cause us to think very carefully about what exactly are the rules of societal regulation that are important to us. I don’t know what specific resolution will be arrived at using the veil of ignorance to address the problem of gay rights and religious opposition to homosexuality. But what I am suggesting is that that is the way we have to address problems such as these if we are to not to just continue to talk through each other, simply asserting our preferences based on our situation and repeating the same arguments.
In some ways, what Rawls is suggesting is that we need to get in the habit of seeing what the world looks like through the eyes of others who may be quite different from us, and ask ourselves whether we would still see the world to as fair from that vantage point. It also requires us to think in terms of universal principles as opposed to principles based on the beliefs and practices of specific groups.
Thinking in this way is hard to do but needs to be done if we are to have any hope of overcoming the differences in policy preferences created by the huge diversity that exists amongst us.
Now clearly those who believe that their vision of God is the right one, and/or their particular religious or secular text is the only source of authority, are going to find it hard to deal with Rawls’ insistence that no identifiable and named groups can be used in formulating the rules. If you believe (for example) that Islam is the one true religion and that the Qu’ran (or Koran) has to be the basis of civil law, I cannot see how you can accept the ‘veil of ignorance’ principle (unless I am missing something). But rejecting this principle also means rejecting the idea of ‘justice as fairness,’ and dooms us to never-ending conflict because people who feel they are being unfairly treated will eventually rise up against their oppressors.
There is an interesting article by Steven Pinker titled Sniffing out the Gay Gene that is well worth reading. I came across it in the excellent blog run by The Center for Genetics Research Ethics and Law.