Not What We Intended

Sometimes the consequences of acting with good motives are not what we aimed at.

If you want war, work for justice

If you and I disagree because I want an outcome more favorable to me and you want an outcome more favorable to you there is room for compromise, as we see whenever people bargain over the price of a house. But if we disagree because I see what I want as just and the alternative as unjust and you see it the other way around, compromise looks to both of us like moral treason.

Consider the issue, currently a live one in Europe, of whether people should be fined for saying or writing things critical of Islam. For those who support the traditional liberal view, agreeing to a fine of five hundred dollars instead of a thousand dollars isn't a solution since any punishment at all is an intolerable violation of free speech. For some orthodox Muslims, on the other hand, permitting people to slander the Prophet is clearly unacceptable; if the government will not impose a fine large enough to stop such an outrage, it is up to the believers to stop it themselves.

That is part of the nature of beliefs about justice—they are absolute, bright edged, in a way in which preferences are not. The point is summed up in the Latin phrase Fiat justicia, ruat coelum, “let justice be done though the sky falls.”

If only we all agreed about what was just, life would be much simpler.

Translating the argument into the language of the previous post, one implication of my positive account of rights is conflict between people who structure the world in different ways, perceive a different pattern of Schelling points, hence adopt different and inconsistent commitment strategies. Because the commitment is to bear greater costs in defense of what you have a right to than the issue in dispute would justify, such conflict will be more violent, consume more resources on both sides, than a conflict that is only over what both sides want.

Toleration vs Diversity

For about two thousand years after Israel ceased to be an independent polity, Jews, scattered around the world, continued to live under Jewish law. Gentile rulers found it convenient to subcontract the job of ruling and taxing their Jewish subjects to the local Jewish communal authorities. One result was to preserve the differences between Jewish culture and the culture surrounding the communities of the diaspora.

What changed that was emancipation, the shift, beginning in the late 18th century, towards treating the Jewish subjects of Christian countries as Italians or Germans or Frenchmen rather than as Jews living in Italy or Germany or France, as natives rather than resident aliens. Seen from some angles it was a large improvement. But from the point of view of cultural diversity as a good, it was a catastrophe. Jewish law ceased to be a living legal system providing the legal framework for millions of people and became instead a combination of an intellectual game and a legal system applying to a limited subset of activities and enforced only by belief.

In the U.S. the process was almost total, which is why the fact that my ancestors were Jewish is only a minor element of my identity. Elsewhere it is still incomplete. I still remember, traveling in Europe as a graduate student, a conversation with a group of European strangers at (I think) a youth hostel. They wanted to know where I was from; I told them I was an American. One of them asked to see my passport, so I showed it to him. At which point he told me that he was (I'm making up details--this was more than fifty years ago) French the same way I was American and another of the group was Italian and ... . They were all Jews, had presumably deduced from my name on my passport and other less obvious signs that I was Jewish; to them that was a stronger identifier than nationality. And, as evidence that the emancipation was a slow process from the other side as well, according to “One of the last prohibitions against Jews in Sweden – that Jews could not hold political office – was not removed until 1951.” (Wikipedia)

The same point occurred to me earlier in my studies of different legal systems. The Romani, for about a thousand years, have maintained their very distinct cultural identity, including multiple distinct legal systems, despite being scattered as a minority through non-Romani lands. As I interpret my readings on the subject, that identity is now under threat in the U.S. and Canada — because we are too tolerant.

The ultimate punishment under Romani law, in most times and places, was ostracism from the Romani community. That was a potent threat for people who believed that all gaijin (non-Romani) were marginally human slime and (correctly) that the attitude was reciprocated by the gaijin surrounding them. It becomes less effective in places where Romani, especially young Romani, unhappy with the constraints of Romani custom and law, have a realistic option of merging into the surrounding culture. One result has been pressure on institutions to relax their own constraints under threat of losing control over their own people.¹

I am not arguing that it would be better if Americans hated Romani or Europeans saw Jews as aliens, only that it would be different in ways at least one of which, greater cultural diversity, many would approve of. Think of it as a conflict between greater diversity at the individual level, purple hair and piercings and children free to reject their parents’ religion, and at the cultural level.

Cultural diversity sounds like a good thing, but is it? The obvious argument against is that if some cultures are better than others by whatever criterion you believe in, human flourishing, accordance with the will of God, or national prosperity and power, it would be better for everyone to be part of the best one.

There are at least three possible counter-arguments. One is that we do not know what culture is best and competition among cultures is one way of finding out. Another is that different cultures may better fit different people. A third is that different cultures may better fit different niches, that the optimal culture for urban workers may not be optimal for rural farmers or soldiers or settlers on newly discovered territory, perhaps, in the future, another planet or a space habitat. All three arguments raise the question of what mechanism in a society determine who ends up in what culture. The simplest, and most common, is for children to follow the culture of their parents, which might work for fitting different niches but not so well for fitting different people.

All of which points towards a post I do not yet know enough, have not yet thought enough about, to write, and away from the subject of this one. But I cannot abandon the subject of toleration and cultural diversity without mentioning the best evidence against a necessary conflict between tolerance and diversity — the Amish. They are at least as different from the rest of us as the Romani, permitted to follow their own customs in ways that would be illegal for non-Amish,² and have prospered, with a population doubling time of about twenty years.

Affirmative Action, Richard Sanders and Thomas Sowell

Research by Richard Sanders has offered evidence that affirmative action by law schools reduces the number of black lawyers. If you classify law students by academic credentials and what tier law school they go to, black students and white students have about the same bar passage rate — a black who goes to (say) a second tier law school is about as likely to pass the bar as a white at a similar law school with similar academic credentials. But if you classify students only by academic credentials, blacks have a much lower bar passage rate than whites.

Sanders' explanation is a mismatch between students and schools. Black students do not, on average, end up in the same law schools as white students with the same credentials. Law schools compete to get black students, there are not enough well qualified ones, so elite schools accept black students with qualifications well below those they require for white students. The result is that many black students end up in schools and classes they are not qualified for, learn little, and fail to pass the bar, would have done better in a less elite school designed for students more like them. He estimates that a race blind admission policy would result in fewer black students going to law school but more passing the bar.

After reading about Sanders’ research, I told my wife about it. She pointed out that the argument was not original with him. More than thirty years ago, in his very interesting Choosing a College: A Guide for Parents and Students,³ Thomas Sowell made precisely the same point in the context of colleges rather than law schools. Black students at MIT had math scores well above the national average but far below the average for white students at MIT; they would have gotten a better education at a less elite engineering school.

It may occur to some readers, at least economists, that the argument is inconsistent with the usual assumption of economic rationality. A black admitted to Stanford law school or MIT because of affirmative action doesn’t have to accept the offer. He has the alternative of going to a school one step down and better suited to his ability, SCU law school or RIT. Why doesn’t he?

Adam Smith’s answer:⁴

The contempt of risk and the presumptuous hope of success are in no period of life more active than at the age at which young people choose their professions.

1. For evidence, see Sutherland, Anne. 2017. Roma: Modern American Gypsies. Long Grove, IL: Waveland Press.

2. Amish who work for Amish employers are not required to pay social security taxes, Amish children are free to leave school after seventh grade. Amish schools are less heavily regulated than other non-state schools.

3. Which I recommend. Unfortunately it is out of print save as an audiobook. Most guides to choosing a college consist mostly of lots of detailed information about different colleges. Sowell’s book is a thoughtful discussion of how to choose, how to decide which college would be best for you.

4. For a more recent version of the argument for irrationality in a different context, see Behavioral Economics and Perverse Effects of the Welfare State by Scott Beaulier and Bryan Caplan.