Right-of-Way: the Grand Compromise Necessary in Western Thought

Jesus said, “He who is greatest among you must be servant of all.” Did he really mean what you think he meant?

When I was a kid I used to watch Star Trek like some people would go to church. I would hurry home after school to make sure I caught that afternoon’s episode. I probably saw every episode made several times. I had my favorites, which usually consisted of several members of the crew under threat of their lives, and choices having to be made about who lived and who died. I can distinctly recall Captain Kirk saying that, “The needs of the many outweigh the needs of the few.” I can also recall Spock agreeing with him. Such was the state of political philosophy in the late sixties. They hadn’t yet been influenced by the next two waves of thought that were about to come into the world.

In the late sixties people accepted that there was a need for a state. They could see the obvious ways that it protected them from barbarism and, despite the romanticism many associate with it, the privation of natural life. They did believe in a kind of all of us are in this together mentality, such that it was acceptable that things could come down to a majority vote on most matters. There was an expectation that was the way that things would proceed. The majority would rule. We knew enough about what we could accomplish together that we weren’t willing to risk that success upon the altar of individual rights. Vietnam was still in the act of teaching us how far away from the truth we could blunder under the guise of what was considered good for all of us. Individual dissent was frowned upon as counter cultural. There was definitely a burgeoning notion of equality, but not a real understanding of how far the sort of social suffrage it brought ought to extend.

For all the reputation of the sixties for change it would be the seventies before the kind of political thinking that would upset the monolithic paradigm of that sort of pure democracy would arrive. As is often the case with philosophy, the movement began in academia. John Rawls wrote A Theory of Justice in 1971. With it he introduced a far more individualistic approach to political thought. It was no longer the largest number who could be saved that mattered, but the just treatment of the individual in transaction with society that would be the arbiter of political thought. Less tyranny of the majority, it would seem, and more rights of the individual not just toward fair compensation for what society might deem it must take from them, but also a say in whether those things really need be taken. He did this in a very clever way. He used the understanding that society had about itself concerning equality against the dominant way it was imposed, always in favor of the majority. He introduced the notion of fairness that called for a veil of ignorance on the part of those who made the decisions concerning who got what and when. If they could not know that they would get the choice portions, he posited, then they would seek to divide the pie much more fairly, such that whatever portion they got they might be happy with it.

If you don’t know ahead of time what gender you will be, what race, height, capability or how wealthy, and you are tasked with helping make the decisions about who will get what, then you will make much different decisions than you would if you did know.  He appealed to the burgeoning understanding of equality that was at work in the world. He didn’t attack the notion of the state. He built into it instead the notion of something at once detached from a person, something existing at the level of that kind of decision making, and at the same time inherent to all of us. He built into society the notion of a soul.

Perhaps the soul is best understood as that thing in man which serves to always pull him back from the brink. Maybe it isn’t the thing which best serves him during normal times, when everything isn’t being called into question and keeping evil from the door is not as important as putting food on the table? It was Robert Nozick, another academic, who, while agreeing about the place of the individual, criticized Rawls for not being pertinent in daily life. To him legitimacy in terms of transfer of possession was not subservient to such a widespread idea of fairness, but to truth in ownership according to what all men hold necessary for understanding that. As long as everything starts out clearly, then whoever fairly receives title of a thing in appropriate transaction, even if they accumulate more than anyone else, ought to keep that title, regardless of how out of balance with the rest of society that accumulation may have caused that person to become. You can’t really impose too strict a notion of fairness into how people interact because those interactions occur according to their own arcs. Sure, the very ability of those transactions does owe itself to the very fairness which it rejects, due to the need for that to underlie contract law and so forth, but it would destroy the will of those for whom it was created if it invaded to that deeper level.

It was Nozick in his seminal 1974 work Anarchy, State and Utopia who made the first cogent arguments for small government as a necessity for free men. Man, in his social and economic interactions only needed protection from force, theft and fraud and law that supported enforcement of contracts. To him inequality was not a real concern. People had the right to accumulate. That accumulation alone, so long as it was not brought about by coercion, did not bring harm to society because it was actually about ensuring that man could act out of liberty in all phases of life. To engage in life was about taking risk and both the pitfalls and rewards inherent to it had to be respected. Nozick did not hold with the standard of the veil of ignorance. He did, however, agree with the basic idea of justice that Rawls had sought. He just thought that the clear path of fair interaction, without undue interference, was the obvious way to that justice. Whether a person had the same as everyone else was not as important as that it came about from the liberty inherent in being able to make one’s own decisions. People freely take on challenge and they freely take on risk. What they do, or don’t, gain from it is theirs and not everyone’s, certainly not the state’s. The state’s role is to protect that, not to prevent it.

The most common criticism of Nozick’s position is that it fosters what is called the tragedy of the commons. That is to say that when everybody does what they want, then resources that are common to all, which if only used by one individual would have no deleterious effect, become either depleted or otherwise deranged. The most often used example is that of farmers grazing their cows upon a commonly held parcel of land. If only one herd grazes the grasses can come back and the erosion from the cattle stomping is minimal enough. If many herds graze, then the impact is something completely else and the land depletes, at least for the use of the next person’s herd. The problem with criticizing Nozick in this way is that it is not germane to his argument. What happens to the land is external to his notion of a right to make one’s own decisions. What people who are criticizing him in this way are doing is appealing to Rawls. They are saying that an equal share in everything is necessary to an analysis of liberty, and that some governing body ought to rule over how the use of the land is carried out, to enforce that equality. Proponents of Nozick’s point of view would say that is just like saying that people shouldn’t be allowed to become rich. There is only so much money at any time and, they would counter, a small proportion of people possessing most of it is the same as the first few farmers gaining most of the benefit of grazing their cattle on the common land. Decisions taken to better one’s own position should not have to cow tow to the concept that doing so might create inequality amongst all of those who aren’t deciding the same way at that time. After all, those individuals are the one’s who took whatever risks were involved, and they should be the ones to enjoy the rewards. Otherwise, what incentive would anybody have to take risk?

I would like to offer a criticism of Nozick, however, that doesn’t involve the tragedy of the commons. I think what is wrong with Nozick’s position is that it has no concept of privilege, nor of the impact those asserting privilege have upon fairness. Human beings are emotional creatures. Certainly emotion does not rule every aspect of their lives, but you cannot exclude it from society or economics. Privilege is essentially an emotional construct. As such it is not beholden to logical arguments that attempt to dictate fairness. It will only answer to the power of other emotional constructs like itself, which seek to assert certain points of view that are broader in nature than any one individual’s situation. Yeah, that’s right, privilege is larger than any one individual’s situation. It’s very nature comes from joining a group, either by birth or by ideal. In any form of individualistic competition, unless an individual is somehow supremely gifted, there cannot be a reasonable expectation that an individual can win out against the resources that a group provides. The simple notion of a basic fairness inherent to the nature of individuals does not address this inequality before these types of groups. What does is something we have actually known about, and operated under in most spheres. It is something inherent to the proper exercise of fairness, or justice, at the mechanical level. What does address this inequality is the concept of right-of-way.

What privilege actually does is distort a person’s world view, so that they don’t see all of the other actors involved in the actions they take. By causing an identification with a group, as opposed to a relationship more naturally derived, it pits those not in that identification against the group. In the long run, this also disadvantages the group as well. They suffer from a lack of innovation and communication of expectation and knowledge from those outside such that they can become monolithic, just like majority thinking, and become vulnerable to sudden changes to the paradigm. They can find themselves suddenly on the outside, which is no more fair to them than things were to those others who were on the outside previously. Because right-of-way has always been how humans understand more complex associations, in terms of what place for whom and when, not seeing everyone involved is inherently unfair. It is so because, in the world that Nozick proposes in which government is limited to such a small scale, there is no governing body other than that of public opinion, and those in a group that is the result of privilege are not subject, by the very nature of what privilege is, to the full extent of public opinion. They will only hear the criticisms of their own group. They will not, therefore, have any cause to understand that they have violated another’s right-of-way.

Right-of-way is mechanical. As such it is boring. It’s also transitory, seeing as how it forms around the locus of a single event relative to the forces involved in that event, and which actors ought to inhabit the locus of the next event which will be concurrent to the one considered. It considers direction. It doesn’t consider an individual actor’s importance owing to their position according to privilege. At one time it did, when everyone had to yield to the king, and then to all those under him by order of their nobility. The ideals of equality, as mentioned, successively banished that old order, though. In its place we have been arguing about what it means to have justice in daily life, without obvious reference to offices or relative position. We seek a way to have justice in daily life simply as people related to other people. Having refuted Nozick, we might find ourselves at a loss to explain how we can have a just order. The temptation may be to embrace Rawls again. I’d like to offer an example from my own life as to why I think that is the wrong way to go.

For the last several years I’ve been delivering things for a living. As part of that I used to do this Sunday sweep, in which four drivers would divide up what there was to deliver for all of those things that needed delivering over the entire city. This being Sunday, not many other drivers wanted to take this sweep on regularly. I, however, was a regular. I knew the in’s and out’s of how to arrange things, where some of the stranger places were located and how much work it was to do certain things. I pretty much knew where everything was all over the city. The irregulars who came in didn’t. If they had signed up to work they wanted to do a run that went to the part of town their weekly routes went to. Because of this, I usually put the runs together. How I did it was very much like how Rawls arrived at equality, from behind a veil of ignorance. What I would do would be to put together four routes with an eye toward the notion that I might do any of them. I ensured this was the case by asking each of the other three drivers which run they wanted to take, starting from who had the most seniority usually, but sometimes by other criteria. I got the run that was left over. Well, there was one run that I didn’t like very much. As it turns out, I seemed to always get that run. Honestly, it wasn’t so bad. I just wanted to do something else now and again, but the break down seemed to put me in it. Even if I communicated my desire for another run to the others as they were picking, which I seldom did, I would get that run. Really, the only times I didn’t get it was when the fourth driver was late coming in. When we were divvying the runs up and only three of us were there I figured that last person had forfeited their chance to pick, so I would take the run other than the one I didn’t like very much. My point is that operating from behind a veil of ignorance will not always produce the equal results that people expect. Without resorting to contrivances, preconditions that preclude people always picking their favorite run, that pretty much equal the introduction of government (or the abolition of privilege), you cannot expect that they will either. And it does no good to appeal to the better nature of human beings, they have a right to their own self-interest.

Right-of-way is mechanical, it’s bland, it doesn’t, by its nature, have any favorites. It’s actually kind of like discovering a programming language, and the power that programming languages can have over reality. When how it works can be organically derived from the nature of what it operates in, as in the case of markets (buying and selling) there is no need for anybody to step in and bring any kind of additional order, barring that which allows the markets to run transparently. When, however, as in the case of society seeking a just way for it to police itself, it can’t be arrived at organically because there are so many competing form of self-interest and privilege is bound to rear its head, it has to be imposed. Nozick was not correct that government has no place in life beyond a very few things. It is, in fact, essential to most things.


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