Stanley Fish on education, law and society.

Of the columns I have written that have been negatively received, none has been greeted with more outrage than last March’s “Two Cheers for Double Standards.” The case for a single standard is familiar and easy to make. If you’re in a position either to dispense rewards (a promotion, a bonus, an appointment) or level sanctions, you should do so impartially; that is, without being influenced in your decision by family membership, friendship, religious affiliation, ethnic solidarity or any of the other considerations that can skew judgment. When a comrade and someone in the other camp engage in the same behavior, your praise or blame should be independent of the personal feelings you may have for either. Don’t give your friends a pass you wouldn’t give to your enemies. Don’t give your brother the job if someone else not related to you at all is more qualified.

This single-standard standard — employ a calculus of merit rather than a calculus of consanguinity — asks you to regard ideological/political differences as articles of clothing; they are cosmetic rather than essential; the person is what he is apart from them and it is the person, rather than the accidents of birth or belief or nationality, who merits your respect.

In contrast, the double-standard standard says that it’s not only O.K. but positively good to favor those on your side, members of your tribe. These are the people who look out for you, who have your back, who share your history, who stand for the same things you do. Why would you not prefer them to strangers? In this way of thinking, personhood is not what remains after race, gender, ethnicity and filial relationships have been discounted; rather, personhood is the sum of all these, and it makes no sense to disregard everything that connects you to someone and to treat him or her as if the two of you had never met.



Favoritism – giving more than an even break to your own kind — is not a distortion of judgment, but the basis of judgment. And being impartial to those who are a part of you — through blood or creed or association or profession (think of the thin blue line) — is not to be virtuous, but to be ungrateful and disloyal, more concerned with hewing to some abstract principle of respect for all than with discharging the obligations that come along with your most intimate relations. The particularism that in the one vision is an impediment to right action is, in the other, the key to right action.

I have been making arguments like this since 1979, when I inveighed against “blind submission,” the policy of erasing from submissions for publication all the identifying marks that tell the editors of a journal exactly who has produced the essay they are judging — what position he holds, what graduate program he attended, what mentors fashioned him, what school of thought he belongs to, what work he has produced, what influence he has exerted on the field. The idea is that after knowledge of these things has been put behind a veil (much like John Rawls’s “veil of ignorance”), the editors will be able to make their decisions on the basis of “intrinsic merit” — a merit that can display itself, shine through, without being obscured by the distractions of a professional résumé.

I contended that there was no such thing as intrinsic merit and that merit could be calculated only in relation to those factors the policy of blind submission forbids us from considering. The “pure” or cleansed judgment the policy supposedly fosters, I wrote, “is never available,” not because editors cannot distance themselves from the biases attendant upon their professional histories — biases that incline them to value submissions congenial to their scholarly convictions, much as an employer might value the job application of a relative — but because without those biases, “there would be nothing either to see or to say.”

Over the years I have made essentially the same argument in a variety of contexts — when I wrote against interdisciplinarity and for disciplinary narrowness, against openness of mind and for a mind closed to error, against objectivity and for discrimination, against meritocracy and for nepotism, against formal neutrality and for affirmative action, against independent voters and for partisan zeal, against a politics that is not a respecter of persons and for what I called “rational identity politics,” against wind turbines and for Nimby (Not in My Backyard), against a worship of free speech and for the deployment of censorship (not, it should go without saying, a principled censorship, but a censorship tied to my judgment of the harms produced by some forms of speech).

Now, when I make these arguments, there is a book I can refer to in the hope that its author might become the target of the brickbats usually hurled at me. The author is Stephen T. Asma, and the book is titled “Against Fairness.” Asma is a professor of philosophy and his thesis is that “in the background of our usual thinking about fairness is the assumption of the equality of all mankind — of egalitarianism,” the idea that all persons, not just the persons you feel close to, are worthy of respect. Egalitarians believe that “tribal thinking is uncivilized because it draws its circles of respect narrowly, while ‘higher civilizations’ include the whole human species in their circle of respect.”

There is a history and a teleology here: once human beings lived in a Hobbesian state of nature intent only on satisfying their own desires and, perhaps, the desires of their nearest and dearest; only later did they mature and “slowly learn to care for others” until at the highest reaches of understanding they learn to care for everyone. (Richard Rorty used to say that what we need to do is expand our sense of “us.”)

Favoritism in this story is something we outgrow. Asma tells another story (backed up by studies of biological and psychological development): favoritism is something we grow with; it may begin in the private sphere, but “favoritism can segue into the wider public sphere and do much good there as well.” Asma finds an example in the civil rights heroes who are usually, he observes, celebrated as “fairness fighters,” that is, as persons who oppose discrimination as an abstraction and fight for a principle, not for a particular local outcome. No, says Asma, “Rosa Parks and Susan B. Anthony were not fighting for the equality of all people per se, but for the inclusion of their in-groups.”

So what has been characterized as the struggle to end favoritism and replace it with a universal brotherhood is in fact an effect of favoritism: “Some serious allegiance to one’s tribe … is how anything gets done at the social level — including civil rights,” Asma writes. Although diversity is the banner under which our modern moral crusaders often march, no one has ever fought for diversity, for universal, undiscriminating inclusion; rather, everyone fights for the inclusion of one’s own kind.

Seeing everyone as an “idealized equal” — not as a particularized being, but as an abstract autonomous agent indistinguishable in essence from all other agents – may be the imperative of a philosophical line stretching from Kant to Rawls, but it is not an imperative that does the work of the world. That work is done, according to Asma, by locally situated persons who act not out of a concern for all humanity but out of a concern for that portion of humanity with which they identify: “Do many Jewish people privilege their tribe over the interests of non-Jews? Of course, they do, and why shouldn’t they?”

The answer to that question is the content of the tradition Asma argues against, the liberal secular tradition that stipulates “fairness between autonomous individual agents” (agents who know nothing of one another) as “the defining feature of our morality.” Against this tradition, which has had its run for over 200 years, Asma poses a morality found in “other cultures, immigrant groups and … rural cultures in the United States.”

In that morality — the morality of favoritism — fairness and rights are less important than “loyalty and patriotism, sacred/profane issues of purity, temperance [and] obedience to authority.” Those who subscribe to that morality or, rather, live it out, perform acts of generosity and caring for which they need give no impartial justification. “They bring you soup when you’re sick; they watch your kids in an emergency; they open professional doors for you; they rearrange their schedules for you; they protect you; they fight for you; they favor you.”

Sounds good.