OA121: A Theory of Justice and the Social Contract (w/guest Aaron Rabi of Embrace the Void)

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Thomas: Today's episode is brought to you by HelloFresh. For $30 off your first week of HelloFresh, visit HelloFresh

[0:00:06] .com and enter LAWPOD30.

[0:00:11] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn!

[0:00:27] Withdrawn! It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said.

[0:00:39] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow, you, sir, are a mouthful.

[0:00:54] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the law offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:27 Thomas: Hello and welcome to Opening Arguments. This is episode 121. Another good number. I like that one. A little palindrome

[0:01:33] of a number. I'm Thomas Smith. That over there is Andrew Torrez. How are you doing, Andrew? I'm great, Thomas. How are you? I'm doing great. I'm excited for today's show.

0:01:41 Thomas: One of my favorite people, Aaron Rabinowitz, on the show. Another interview.

[0:01:46] Give us a preview. What did you guys talk about? Yeah. So Aaron, longstanding friend of the show, host of

0:01:52 Andrew: The fantastic Embrace the Void podcast. Both you and I have gone on his show, a professor of philosophy. And Aaron and I are going to take a deep dive into legal philosophy, into social contract theory. We're going to discuss John Rawls book, A Theory of Justice, which is, I think, still kind of the preeminent text for

[0:02:17] what I would say is the like, you know, sort of left liberal view of both the economy and, you know, and how how laws ought to be made. It's, you know, staggeringly influential. It is a robust defense of the welfare state, progressive taxation, all of that good stuff. And I can't wait to dig in with it. Excellent. Yeah, I am a really big fan of Aaron's, and of

0:02:43 Thomas: Course, I'm a fan of yours, so I can't wait for that. With that said, let's pop on over to your interview with Aaron

[0:02:49] Rabbi. Bye.

0:02:54 Andrew: Okay, so joining me on today's episode is Aaron Rabinowitz, one of the co-hosts of the fantastic

[0:03:00] Embracing the Void podcast and the best expert I know on philosophy, particularly social and political philosophy, which has always been my bent. And today we are going to talk about things John Rawls, so Aaron, welcome, welcome to the show. Thanks, man, happy to be here. So I'm, why don't we start when I just threat to you, like, why should anybody care about John Rawls? Oh, sure, so I think John Rawls is a really smart political philosopher who ties together a lot of really useful ideas, and one of the cases where he does that

[0:03:40] Quite well is taking taking what's called the original position, which is a very valuable thought experiment that I think pulls on a lot of the ideas of social contract doctrine, which is at the basis of the American political system and really a lot of sort of modern democratic understanding of society and figures out ways to usefully talk about what actually follows from that doctrine for a fair and just society. Okay, so let's break down kind of all of the components of that. Let's start

[0:04:20] with social contract, right? And I have said on the show that I think the foundational philosopher for the United States Constitution is John Locke. It is clear to me that the founding fathers were heavily inspired by Locke. We've discussed how the phrasing of the Declaration of Independence is that it's just a letter,

[0:04:45] That it has no legal status, but is very clearly espousing kind of Locke. Literally cribbing from Locke. Yeah, right. In the opening paragraphs, such that they would be accused of plagiarism if they tried to get it published. Yes, right. I think Hobbes should also get a shout out in this, in that Thomas Hobbes is viewed sort of, not, he's not as popular, I think, as Locke, but I think his understanding of social contract fed into Locke's understanding and presents an important and compelling counterpoint for why we really want this doctrine. Okay. And so let me give

[0:05:25] My non-expert view on social contractarianism. And you can tell me where or if I've gone off the rails. Where you've become an amateur, I understand. Yeah, exactly. So in my view, the development of social contract philosophy in the 17th century really changed the way in which people viewed government, right? Moving from a system of kind of the divine right of kings of governments are ordained by God and they just are. They're a structural condition of the universe to the notion – the simplest

[0:06:11] Way that I would define the social contract is the idea that governments are based upon the actual or implicit. We can talk about, about, you know, the extent of that, but the actual or implicit consent of the people who are subject to it. And so the reason why governments are legitimate and say, you know, the the mafia or, you know, Somali pirates or, you know, somebody who just happens to exercise power in a particular area is not legitimate is because in in in the first case, we've actually

[0:06:48] Agreed to that. That. And in the second case, we haven't. Is that, that's a fair kind of 30,000 foot social contract? Yeah, absolutely. Yeah. Yeah. And so, you know, almost immediately, right, one of the questions that you might ask of social contract theory is, you know, the sort of, well, I don't recall signing any social contract. Right, right, exactly. Like, even where we have something that is, you know, awfully close in American history, right.

0:07:19 Andrew: I mean, like, you know, we had a Continental Convention, you know, a Continental Congress and a Constitutional Convention that

[0:07:25] Sent a document to people who actually signed, sent a document to white male landowners, a portion of, light, right, right, yes, right, they were certainly, they were certainly trying for that, they were, they were clearly attempting to do that, indirect refutation of the monarchical structure where the contract is delivered from literally biblically on high, right? And so, yeah, I mean, I was going to talk about the restricted definition of who counts as a citizen, but leave that aside for a second. Even if that ratification were valid, that ratification was 230 years ago. So why is it binding

[0:08:17] on you and I today, let alone why is it binding on women and people of color today? Sure.

0:08:25 Andrew: And so what do you think about that?

[0:08:54] We could talk about the idea that, like, voting itself is a partial solution to this problem, right? Voting is the re-upping of the social contract on a regular basis, and when we, when we start to see the breakdown of voting via, like, gerrymandering, for example, right, we start to see a lot of genuine concern that the social contract isn't being reaffirmed, because you can't get rid of the people who don't anymore represent you. Yeah, and and and this is something I mean it It dovetails with a concept that – I know it's a concept

[0:09:25] In philosophy as well, but it is one you see in jurisprudence, and that's the notion of the rule of law, right? Yeah, absolutely. One of the key aspects of the rule of law is the idea that laws are promulgated publicly. That is, you have a right to know what the law is. And we've talked about this previously on the show, that that stands kind of in contradistinction to a principle that a lot of people know offhandedly that is largely correct, the old ignorance of the law is no excuse doctrine. Right. And, you know, particularly in the

[0:10:12] 1980s and 1990s, when we, when, when the legislative trick of the time was sort of trending towards these omnibus bills that were hundreds or even thousands of pages long and that combined lots of things together. We talked about the omnibus crime bill of 1994, right, which played a role in the Democratic primary. Well, the reason that it was an omnibus crime bill is because part of how Bill Clinton governed and George H.W.

[0:10:43] Bush before him, and even Ronald Reagan, was in order to get votes from the other party, you kind of put together this massive stew, uh, and you Know, you, your party got 60 percent of what it wanted and the other party got 30 percent of what it wanted, and then the crazies got their, their 10 percent, uh, and that would give you a sufficient enough legislative

[0:11:08] Coalition to to get things passed, um, it would be, it would be a fantastic debate, uh, beyond The scope of this, as sort of whether that's, uh, you know, whether, whether, whether 90s-style

[0:11:21] Omnibus legislation or 2017-style gridlock, you know, Mexican standoff, right, is, uh, is superior, uh, but, but, but for purposes of rule of law, right, the idea is how, how, how public are laws being promulgated if If, you know, the Internal Revenue Code is 300 pages long, right? If, you know, this particular bill is 500 pages long, covers 39 subjects, and you have to be a lawyer to understand what it's talking about. Like, is there really, you know, that kind of pushes up against the notion of, you know, re-upping the social contract? Because do you really know what you're voting on? Do you, do you really understand and reaffirm?

[0:12:06] Or is this, you know, just that that, you know, by another means, still a sort of structure being imposed from above?

[0:12:20] Yeah, I think those are all problems that have to be addressed by sort of the representational system. And what I do think Rawls points out that is valid, or what the social contract points out that is valuable, sort of there's on the one side, there's the Lockean idea, which you're sort of talking about here some that like, it's valuable for a society to be able to make those kind of compromises. Like, whatever you think about, you know, what the right kind of legislation is, the ability to form that kind of legislation by some process that is better than hacking each other to death is a good method. It's an improvement on the previous model.

[0:13:00] And this is where I think Hobbes should really get his due, because the other flip side of the social contract is that you want to, that the rule of law has to be backed up by force. And this is where the libertarians have trouble, but at the end of the day, like, the leviathan is important because it amasses force in such a way where I don't have to go carry out violence against somebody if they break a contract with me anymore. I can resort to the society to address that contract in a way that doesn't involve us killing each other. And and, like, the alternative, right, then. And the classic quote of the, you know, the nasty, brutish and short,

[0:13:40] That's what you get if you don't have the social contract. And I think that pretty effectively motivates the need for society. And I think the improvements in society in the past 300 years justify this need. And so that's why we then turn to things like the original position as useful mechanisms for unpacking what that kind of society should look like and how we should improve things. Yeah. And I would say that my understanding of sort of the difference between kind of a more Lockean position and a more Hobbesian position is that, – has always been the degree of uncertainty about the state of nature, right? The degree of

[0:14:26] nastiness about the state of nature. Right. Yeah, exactly. Locke had a less pessimistic view of human beings. Hobbes was pretty badly scarred by the English Civil War, and he really, really thought human beings were terrible and needed to be held to task in a cruel way. Yeah. No, I think that's exactly right. And so the theory is, right, remember, if government is formed by consent, then you have the right to be without government, right? And that state of being without government is the state of nature. And, you know, you have on the one hand Hobbes and his, you know, famous dictum that you quoted that, you know, in the state of nature, the life of man is solitary, poor, nasty, brutish and short. If that's your view, that in the breakdown of society, we are all cracking each other's

[0:15:16] skulls open and feasting on the delicious goo inside, then what logically follows from that is then government ought to have wide-ranging powers because, after all, in their absence, you're going to have your skull cracked open and the goo eaten out. Right. On the other hand, Locke had a much more optimistic view of human nature. And he used the sort of delightful phrase Of inconveniences. But as you alluded to earlier, the idea was much more, look, we're not going to be at each other's throats. But the problem is, is that when you form voluntary agreements, contracts, you need a third party to adjudicate those contracts and

[0:16:07] nobody is sort of truly impartial in their own case. And I've quoted the bit from Locke before where he says, you know, no man can be a judge in his own case because passion, heat and revenge Is very apt to carry someone too far and with too much heat in their own case, and not far enough and, you

[0:16:26] know, with insufficient. Uh, commitment or whatever. I'm paraphrasing, but I've got, I've gotten 90 % of it in the affairs of, of others. And I think that, you know, that's a, that, that sort of accurately describes it. Um,

[0:16:39] In, in, and so, you know, however you, however you fall kind of on that spectrum, um, you know, we've, we've sort of poked at a little bit of the, you know, is there really a social contract? And then, um, and then for that reason, I mean, in, in, in my view, and again, you're you, you Have the uh degree in the history, in the history, but it seemed like in political philosophy you

[0:17:04] Know, people pointed out kind of problems with the actual idea of a of a Literal social contract, right? And so social contract areas, contractarianism, kind of went away for a couple

[0:17:16] Of centuries, and then, and then, uh, John Rawls sort of resurrected it and said, Look, Like, let's not talk about the state of nature like it's a real thing, because, you know, it's not like we're going to be able to reconstruct it. You might have localized pockets, you know, there are riots,

[0:17:35] there's a natural disaster. But let's conceptualize of it as a thought experiment. Let's say, what would we do? And by thinking about what would we do, we can come up with what sort

[0:17:48] of obligations would we be willing to take on and therefore extend that out and thus validate, you Know, the power that the state has. Because after all, if it's something that we would have been willing

[0:18:01] to assent to, that's the moral equivalent of having actually assented to it. Right. Exactly. So so talk about the original talk about Rawls's original position. Sure. And also, by the way, I think the the way that America sort of ended up a federalist country, you know, the federalist kind of one is kind of a point in Hobbes's favor.

I just want to throw that out there that like when it came down to how much force we needed to exert, we needed a federalist kind of system to really crack down on human behavior. That's a side tangent, though. So the original position. No, no, no. But it's that's a it's a good tangent. So unpack that a little bit. I mean, tell me. Oh, I mean, like, when we, you know, we had the Articles of the Confederation, and it didn't work.

[0:18:41] And it didn't work because we didn't have a centralized enough Leviathan to deal with the vagaries of human behavior. And so we realized that we needed federalism, we needed a unified system that had, like you were saying, one transparent code of unifying rules within which a variety of different lifestyles could exist. But that we needed we needed we needed a standing army in a centralized government that really could say, no, if you start doing this kind of thing, the black helicopters are coming, you know, like it's... I stopped. I think this is really interesting because We hit our first sort of vocabulary difference between the

[0:19:26] field of philosophy and the field of law and jurisprudence, which I know you philosophy types look down on jurisprudence as amateur philosophy. Do we? And rightly so in many cases. But it's funny because to me, when you say federalism and federalist, I don't think of it – I think of it in the opposite way, right? Like I think of it as presently used by groups like the Federalist Society, in other words, to Mean, although there is a central authority, it should be as minimal as possible. And there are

[0:20:03] autonomous, you know, states within that, within, you know, the federal rubric and the, you know, federal government intervention is sort of as minimal as possible. So, for example, in OA 113, where we were talking about the law of the sea and we were talking about the Eighth Amendment, you know, it took – there are provisions. There are only a couple left, but there are a couple provisions of the Bill of Rights that are still not incorporated to the states, right? So, for example, the Eighth Amendment's prohibition on excessive fines

[0:20:34] is only a right you have against the federal government. Oh, interesting. You don't have that right against – you know, you live in the state of New York. Like if New York says we're going to impose a

[0:20:46] million-dollar fine for jaywalking, as of right now, you don't have a federal Eighth Amendment claim against that. Now, New York probably has a cruel and unusual punishments and an excessive fines clause in their state bill of rights. But not all state bill of rights track the federal bill of rights. So

[0:21:05] anyway, that's – you opened up the rabbit trail and I hopped down it. I mean, I mean, Federalist, like after my boy Alexander Hamilton and the Federalist Papers and like the strong argument for the central government that like everyone was afraid of, but what was ultimately justified and necessary for a proper functioning government. So, all right. So we really should talk about the original position because that's why we're all here. Right. So the original position, I always, when I teach the thought experiment to my students, I like to pitch it to them like a continental congress for souls, which is funny, I imagine, for your atheist friends. But like I think the idea crosses

[0:21:45] Like imagine you haven't been born yet and you're just a disembodied consciousness and you're a rational consciousness and you have self-interest and you know what is going to be what you're going to want and not want basically in a rough kind of way. Right. And then imagine that you and all of the other selves collect together in, you know, a magic place and you're going to say you're going to ask each other the question, what would you agree to? What society would you be OK being born into? And then at the end of everything, when everyone's agreed, you're all going to be born into that society. Right. That's the original position. And within that framework,

[0:22:25] There are certain things you don't know about yourself, so you have basic knowledge of your own self-interest, but you don't know any features of yourself that could potentially bias you to certain systems versus another. This is called the veil of ignorance.

So you don't know if you're going to be rich or poor, you don't know what your race is going to be or what your sex is going to be, you don't know if you're going to be smart or you know or not smart, you don't know if you're going to have a disability or no disability, like you don't know any of those kind of features of yourself. And stripped of all of that, what would you, what would you agree to is basically the question. Okay, so, so if I were just thinking about things in the abstract and you ask me, Andrew, be totally self-interested, what

[0:23:10] Kind of a society would you want to have, I might say, uh, absolute monarchy where Andrew Torrez is monarch, right? Sure. And And and that's pretty ironclad from an Ayn Randian, you know, self-interest position. But if I don't know if I'm going to be the monarch or a subject, I'm probably not going to vote for that one. Right. Exactly. Right. So. And is it really just the like the mathematical odds there? I, like if I say, OK, well, you know, the U.S. is a country of three hundred and seventy million people, like monarch, OK, so I have a one in 370 million chance of having absolute power and

[0:23:51] a 369,999,999 in 370 million chance of being a serf. And I don't like those odds or or is there more to it

[0:24:01] I think there are, there are different ways that people have tried to hedge on it, but I think that's that it is an interesting question because it, it, what you're pointing towards are some of the problems that some people have raised about some of the assumptions about what Rawls then says comes out of this view. Right. So Rawls is then going to claim a couple of principles get kicked out of the original position that he thinks that everyone would agree to. And some people might might be wondering like, well, well, would I necessarily like, like, would I be okay with rolling the dice? Maybe, maybe I'm, maybe I'm a gambler. And if I'm a gambler, like maybe I'm okay with a system that's vastly unequal, for example, if

[0:24:42] I've got a 50-50 shot of being on the winning side of things, you know, I mean, like, so, yeah, I think that, uh, Rawl certainly thinks that it doesn't work out that way. He thinks that, right, for whether it's a matter of, of, you know, no one wants to play the odds and everyone's a conservative, and that's a, that's a questionable position to take, or whether he thinks that there, there are more sort of subtle ways to work it out. He certainly thinks that, um, uh, you're not going to agree to a system that that could end you up in a really bad position. So, um, yeah, well, but

[0:25:22] I think right it And we're going to talk about, you know, sort of temperamental conservatism and, you

[0:25:30] Know, the kind of playing the odds. But but obviously, I mean, you'd have to be the dumbest. You'd have to be a Bill Bennett level gambler to want to take the like one in three hundred and seventy million shot. Sure.

0:25:42 Andrew: I mean, I don't think anybody would defend that. So we can rule out like certain forms of gross inequality. Equality

[0:25:48] And I think, and then, oh, go ahead. I think I would say, you know, um, I don't remember off the top of my head, uh, what Roles, how Roles sort of addresses this particular problem, but I do know that there's sort of modern applied approaches where you could point to things like, in the original position, you might have knowledge of the fact that in an unequal system the vast majority of individuals are on the losing end of things, right? Historically, in any system where there's been wealth inequality, it's not like the vast majority of people are the people doing well and then a few people are slaves, it's usually, you know, a pyramid system, right? And so, right, no one, like

[0:26:28] It, the odds are likely to be not in your favor, and so it's never going to be like, oh, well, it's a 60-40 shot, I'll give it a chance. It's, you know, it's like, it's a 90-10 shot. Yeah. And and all All of the choices you have to make between our choices, right, have to map onto reality, right? Because if you were just sort of constructing, you know, hypothetical scenario, well, you know, take the hypothetical scenario where, you know, 369

[0:26:57] million people are obscenely wealthy and a million people are slaves, right? Right. Like leaving the moral requirements aside and leaving, you know, sort of Rawls' Maximin principle aside, you might say, oh, yeah, no, right. I'll take that. I'll take a 369 to 1 chance.

0:27:23 Andrew: You know, those are awfully good odds. But that doesn't map to any kind of real society that we could imagine.

[0:27:34] Sure, exactly. You couldn't have obscene wealth going to 99.9 % and extreme poverty only going to 0.1%. So yeah, my understanding

[0:27:48] of the original position was always – I think the phrase Rawls uses is that you're not aware of your morally arbitrary factors. Exactly, yeah. Your contingent features.

0:27:58 Andrew: Right. Right. And then and then the question becomes, you know, that we could have as a debate is which

[0:28:04] Which aspects of your personhood are morally arbitrary or Contingent and which ones are not, right? So, you know, so for example, you listed, right, I think we would all agree, you know, ratio, race, and nationality, uh, are as arbitrary as

[0:28:23] As it gets. Uh, I don't I say we all would agree, but I guess there are certain people wearing Kakistani flags that might beg to differ. But, you know, among among non-white nationalists that listen to this show, uh, you know, we could agree that something like race or gender would be, uh, a morally arbitrary factor. Um, but then, you know, Rawls has on the list, and you listed, intelligence, right?

0:28:48 Andrew: Like, is that, you know and how, how much of that, uh, you know, truly is kind of an accident of birth, uh, and is unrelated to how you might structure a society versus

[0:29:00] You know what? What would its correlation be? So, you know, so you have all of that kind of in the mix from a debate perspective.

0:29:12 Andrew: But understanding that it's, you know, it's a thought experiment, understanding that there might be some uncertainties. Yeah. I would think, right, kind of the first, this is, I'm teeing you up for Rawls' first principle. But

[0:29:25] the first thing that he says is that when you're thinking about things that can be distributed in a non-zero-sum sort of way, that is, I can extend a liberty to you and also extend the liberty to me, and it doesn't deprive you in any sense. So you would contrast this with economic goods, right? Like if there's a fixed pie,

[0:29:51] every dollar you get reduces the overall pie by $1. But things like natural freedoms don't seem to fall into that category. And and Rawls says, well, in that case, the experiment that we would come up with is everybody would want to have the maximum available freedom for everybody. Right. If you don't know where you're going to wind up and it's possible to give everybody full and equal rights, then why on earth would you prefer a system that you might wind up on the on the bottom half of that? Yeah. Yeah. He he's first principle

[0:30:31] Comes out as a principle of equality of liberty, which really is, in a sense, equality of rights, because we're talking about the liberty to vote, which is the right to to not be encumbered or prevented from voting. Voting. So he thinks that as much liberty as possible that doesn't impede the liberty of others should be given to all individuals equally, that anyone in the original position would bare minimum buy into that because they would never want to be on the losing end of not being given full and equal liberty to act the way everyone else is being allowed to act, uh, which is really interesting, that's a very uh, John Stewart

[0:31:11] Mills liberal kind of view of society, but Rawls specifically says he doesn't think people in the original position would be utilitarians. He rejects utilitarianism from the original position, which, I think I honestly I think is because he has a kind of, uh, unsophisticated view of utilitarianism. So going back to your question a little bit about, like, what people would or wouldn't buy into from the original position, one of the reasons he thinks that people wouldn't buy into, even if they were given the, like, 70 40 chance, 70 30 chance of not being a slave, they wouldn't buy into any things, because people aren't utilitarians, and they wouldn't

[0:31:51] They wouldn't accept a utilitarian slave style society because they have certain other views, they and, and, like, he doesn't quite explain exactly how or what that is, but, like, he certainly seems to to strongly think that people wouldn't be okay with a society that meets the criteria of maximizing utility at the cost of radical suffering for certain individuals, and it doesn't seem to be just like, a you know, people don't want to roll the dice kind of thing. I think he thinks really that people have certain side constraints, the ontological side constraints about what kind of society they would buy into. Anything's

[0:32:32] Well, yeah, yeah. And so so let's I mean let's draw down it Because as we're going to unpack kind of the second principle, I

[0:32:40] Think that that brings that discussion sort of to the fore. I mean, you identify as a utilitarian, right? With side constraints. I think I've heard you say that. Right. Basically. Yeah. But – and I suppose we're kind of geeking out about this. I mean, we should define – I mean, classically, that has been defined as the principle of the greatest good for the greatest number. Yeah, and we shouldn't worry too much about what we mean by the greatest for the greatest number. Like, what I think the best way that I would put utility utilitarianism is to say the suffer like, this, this is the Peter Singer kind of version the suffering of conscious beings matters. It matters in a fundamental, irreducible kind of way. And

[0:33:20] It's mattering is the basis for morality. Where the suffering exists doesn't matter, if it's my suffering or your suffering or the suffering of of an animal, make zero difference to the importance of the suffering, and it is our moral obligation to reduce all unnecessary suffering wherever possible. That's the goal. Um, and, I, you know, and like, there are sophisticated ways to cash that out, but like, that's the important thing. Um, so yeah, go ahead. And so then, right, immediately the question becomes, what weighs against the suffering of in other words, is it possible

[0:34:02] in a calculus to outweigh the suffering of one person by a greater good shared

[0:34:09] By others? So, for example, you know, I mean, the classic example of that is particularly, you know, historic building, like the Golden Gate Bridge or the Brooklyn Bridge. We know that three or four people will die during the construction of a massive suspension bridge. Right. Right. And so in in undertaking that endeavor, if if you have an absolutist view, right, if you say, well, it's just a bridge. And at the end of the day, you know, you could, I don't know, swim across or take a boat or something. You're talking about a tiny convenience, but you're talking about a tiny convenience being

[0:34:49] Shared by hundreds of millions of people, that collectively the overall utility of that outweighs the massive harm to the four people who died during the construction of the bridge. And that's where I think you get into kind of the baseline criticism of utilitarianism. Utilitarianism and you know we can talk about

[0:35:13] Some of those fun. That, that to me is a generous case. I think that's that's making it easy on the utilitarian. Okay, I think if you want to press the concern of the utility monster, it's the case uh, yeah, I was just gonna go there. So, so this is the case of the hospital that cuts you up to save five lives, right?

You're a healthy person, you come in, it turns out that your organs, if you if you were taken, if they were taken from you right now, could save five other people, right? Would you is it their moral obligation to take your organs and save those five other people, right? And we could compare this to, like, a trolley problem and how people would turn the trolley to

[0:35:54] Save five lives at the cost of one life. But why isn't it okay for the hospital to do that, right? And this, like, raises real concerns about, like, if you're really maximizing utility, are you willing to sacrifice complete autonomy and any deontological principles about what you ought not to do to individuals, no matter the consequences, in order to get those maximum consequences? So you you are too smart for me to lead down the road I was going to get you to agree, I was going to get you to agree to the bridge and then spring murder hospital. But I love but what do you think about murder? Right. Right. What's your answer to murder hospital? And again,

[0:36:34] let's let's.

0:36:35 Andrew: Yeah. I mean, you you come into the hospital. You don't know if, as a patient, if

[0:36:41] You're going to be, and let's say it's one to ten, let's get let's, you know, if you're gonna be the nine patients who cares, yeah, who are cured, or the one person who I'm sorry, like, this is we don't call it murder hospital for nothing, you know you're, you're the one person that we're gonna cut up and Uh, and disperse out their organs, right? I mean, isn't that the same principle as the bridge? What's, what's

[0:37:05] The difference? So, I'm gonna I'm gonna lay the the standard line on you and we'll see what you do with it. Um, so the standard standard line is, I can argue that murder hospital is a bad utilitarian system because my goal is to maximize utility and minimize suffering, and if everyone finds out that when they go to the hospital there's a chance that they're going to end up on the losing end of that deal, people will stop going to hospitals, and hospitals will stop being able to treat people, and people will get sicker, and there'll be more suffering overall. So we're better off with a society that people can and trust if I go to the hospital, someone's not going to compromise my autonomy. How Very John Stuart Mill of you, I'm impressed. Um, but, but, but now, right, let's, let's

[0:37:49] Go back to the parameters that we put on the thought experiment. You you set a chance. Yeah, but, but we've specified, right, it's 99 to 1, right, like, and in in real life, on a on a on a day-to-day basis, right, the, uh, odds of you when You have any kind of major surgery, the odds of a complication are typically higher than one percent, and people

[0:38:14] still go to hospitals. Now, right? So in in other words, I would, my one argument to that, uh, not necessarily the one I would press in a vacuum, but the one I'm pressing here because, because I think it dovetails really nicely with, our gets us back onto the John Rawls discussion, is that people have a better threshold for

[0:38:32] risk than that. Right. Like, yeah, like, OK, murder hospital would take some getting used to. But if you had a 99 percent chance of coming out cured and a 1 percent chance of coming

[0:38:45] out dead, or I guess not coming out, then, yeah, people, you probably wouldn't go for a sore throat. But, you know, maybe that would also have some social benefits. And this is why, where I think, you know, there are a couple options, but I think the fun one is the utilitarian can bite the bullet and say, yes, this is why on large scale political questions, we want utilitarians. We want people who will say, you know, if we quarantine these 10,000 people so that they don't spread this disease, but they die off by themselves, we save 3 million. That's the right call. Brutal as it seems, horrible as it seems. Yeah, but now you get to join Antonin Scalia

[0:39:25] in the company of, I would torture to death the terrorist who knows the location of the atomic bomb, atomic nuclear weapon, that's about to go off

[0:39:37] in, uh, you know, downtown Manhattan. Yeah, my answer to the terrorist thing, the torture thing, is not a moral, when it's a practical, when it doesn't work. Uh-huh. I mean, but you'd be okay? Assume so. So call it schmorture, right?

0:39:49 Andrew: We've got, we've got an advanced form of torture that really works. But, you know, it has to involve, you

[0:39:55] know, unbelievably cruel punishment to somebody. Yeah, I'd kill someone to defend somebody that I love, and I would do it in a painful way if I didn't have a not painful way. All right. Okay.

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[0:41:21] try it. Let them help you take a little bit of the pressure off during the holiday season. And Rawls's answer back to murder hospital is, uh, what he calls the, the maximator principle. Right. And he says economic solution to what he, what he said is an economic problem primarily. So yeah, he,

0:41:40 Andrew: He, he does. And we're going to, and I'm going to set you up with a, with a hypothetical to try and derive the second principle. Um,

[0:41:46] but, but, but Rawls would, would come back to me and say, no, Andrew, like, uh, people. People are willing to take the risk of complication in surgery today because there's no other alternative. But if you offered

[0:42:04] them an alternative that had less upside but avoided the catastrophic risk of death, then they would take that. And so the economic maxim is the idea that instead of – we were looking at utilitarianism as sort of figuring out, if we turn it into an economics problem, how to maximize the average overall utility. We sum up everybody. We sum up all the positive happiness of people going across the bridge. We subtract the misery of people dying in constructing the bridge.

[0:42:42] And we find the one that gives us the biggest number. So that's an average utility function. And and obviously there are lots more sophisticated. I mean, the form you were defending is, you know, that you

[0:42:56] could take that average over time. Right. So a longitudinal average is different than a snapshot average or whatever.

0:43:02 Andrew: But but still, you're starting with the notion of kind of an average function. And what Raw says is we should have a maximum function, that what people really are is inherently conservative by temperament, if not

[0:43:14] by politics, and they want to avoid the worst possible outcome. And they are willing to trade off some at the top in order to not wind up with that risk of catastrophic loss at the bottom. Or we could say if our goal is to get something that literally everyone will agree to, the most conservative bare minimum position is this, right? This is the thing that even the most conservative and like the less conservative people would agree to this too, I think, as a, you know, if they can't get a better option, they would accept this option. Right. Right. Right. And that way you get, going back to our social contract roots, you arrive at that key link that Rawls needs to establish, which is, yeah, there's no real, you know, magical social contract. But if we can come up with something that rationally everyone would agree to, that that's as good as having them actually agree to it. So we wind up with this sort of inherently very conservative outlook

[0:44:16] of I want to hedge my bets. So now let me take – I'm on board. I can't come up – I mean, can you? I can't come up with a good argument against the equal liberty principle. Oh, I have one. Oh, excellent. I mean, my understanding is in the literature, right? Right. Like Nozick doesn't take issue with equal liberty. Nobody does.

[0:44:35] But but but go for it. I'm this is why I have you. I mean, I, you know, having spent a lot of time hanging out with white nationalists online, I've been seriously reconsidering the whether whether we can. So one of the big criticisms of Rawls in general and the original position is that when he says, well, this is what's obviously going to cash out of this system, is he really tapping into what every human being would agree to or is he tapping into his own parochial liberal Western view of of culture and that sort of thing, and one of the things that he might be taking for granted is equality and the idea that everyone really thinks that

[0:45:15] an equal egalitarian society is the best kind of society, and the conservatives like they literally would would argue and say, no, the most functional system is one where everyone has a role proportional to their capacities, even if that means some people have less liberties.

0:45:36 Andrew: And so then the question is, is that something to which you would assent if you don't

[0:45:42] know where you're going to fall? I think a thoroughgoing identitarian can say yes. I think he can say, because he really believes, right, if I put myself in Richard Spencer in a second and put him in the original position, I can say, look, I don't feel negatively towards the the lesser individuals, right? I think that everyone will benefit, it's like, it's like Brave New World, everyone will benefit from being in the class that they are best suited towards. And so a functional society shouldn't try to make everyone try to be equal when they're not suited towards it. A healthy functional society puts puts everyone in the right class. I

[0:46:23] I I kind of feel like we would need uh an extra show to uh uh to dismantle that. I mean, and again, my show is called Embrace the Void. I I do uh and and, you know, I mean, I would, I would just say uh philosophically, I I think there are there are a lot of problems with that, but uh, since you're beginning with a false premise, uh, it's, you know, which false premise, is well, the false premise that there are meaningful differences in society

[0:46:57] between races, so I would argue that is an empirical claim, and that that I can argue that the person in this position can say, um, I, you have no evidence in the original position, and that claim is false.

0:47:10 Andrew: But the question is not whether you have evidence in the original position for it, the question is whether it's true or false.

[0:47:16] Right, because that's, because you know the basic facts about society, so it's what's important is not what I can demonstrate to you now, what's important is what's actually true. But anyway, so I do think there are ways to work around this. I think for another way to do it is to say, okay, racist, here's the deal, let's make conditional claims for what's going to be true of reality. So reality is going to proportion things equally, assuming that it turns out to be the case that everyone has equal capacities, and then you can make your claim, as you're saying, that once, as soon as we get into reality, we realize everyone has equal capacities, and therefore, you know, as equal

[0:47:56] capacities, and therefore should have equal liberties, and that that forces them to have to commit to that as a conditional claim in the original position. Position, that's my theoretical workaround for my horrible hypothetical. But I like it, I like, so why don't you, know, it's like second principle. Yeah, okay, well, yeah, so, right, well, actually, I was going to come from the exact opposite side, which is, okay, we've said for inexhaustible goods, right, for liberties, for things that I can give out where, uh, giving it to to Aaron doesn't take it away from the pool available for everybody else, obviously what you want is a maximum distribution to everyone, that is then uh an equal distribution to everyone, everybody gets uh as much in and as far an exercise of their liberties as is compatible

[0:48:44] with with everyone else, um, so softball, now why isn't that then also true for exhaustible goods, right, like so uh, for economic goods, same principle, let's let's take everything, the best thing, if what I'm going to do is, I don't know what position I'm going to be in? Why would I create inequalities? Why wouldn't I just say everybody gets

[0:49:08] an equal share that that totally minimizes my risk? Right? Right. So I mean, I think in practice, the answer is going to be that everyone is going to engage in the society in different kinds of activities and some amount of natural. I'm hoping I'm answering your question. I'm hoping I understand your question, but I guess my answer would be some amount of natural inequalities are going to emerge as a result of people choosing to do different kinds of work or different amounts of work to some extent, and the amount of resources that exist in the world. And I think the argument is it would

[0:49:48] cause too much harm to try to maintain absolute equality in the face of that. System, it wouldn't allow as much good to be created as if we allow for an acceptable range of inequality as long as it fits with the maximum principle. Yeah, and I was, I was trying to to force you to defend capitalism because I am, I am, I'm well known as a thoroughgoing capitalist, and that's, I totally, I mean, like, well, I mean, I'm a democratic socialist, I guess technically, but like, I I think a lot of things, the capitalist system is perfectly fine, and as long as you have a progressive income

[0:50:28] tax and a sufficient social safety net, uh, some amount of wealth inequality is fine. So this system is not, well, and we're, and we're going to get to, we're going to hopefully get relatively quickly to how you derive those. So, um, but but yeah, so here's here's what Rawls says, this is chapter 26, six, of A Theory of justice. And he says, if there are inequalities in the basic structure that work to make everyone better off in comparison with the benchmark of initial equality, why not permit them? If, for example, these inequalities set up various incentives, which succeed in eliciting more productive efforts, a person in the original position may look upon them as being necessary to cover the costs of training and to encourage effective performance, right?

[0:51:13] So the idea there, if all you do is take the pie and divvy it up exactly equally, then you won't have incentives for people to do various jobs that are necessary for the functioning of a complex modern society, but perhaps undesirable. And so the classic example of this is working on a deep-sea oil rig. It's unbelievably lonely and unbelievably dangerous. And so the way in which we

[0:51:51] compensate for that is by making it very, very lucrative as a relatively unskilled job. And so without the opportunity to pay people a disproportionate amount you wouldn't have people running oil rigs and now Now, you know, we can have that debate in terms of offshore drilling, but it's easy to extend that to sort of all sectors of the economy. You know, you have to put in a million hours, a million years, you know, you never get to have any loved ones. Like, you know, that kind of like that understandable, like if someone puts in a ton of effort, their time should be worth proportional to that. Like there are

[0:52:31] totally a lot of principles that make sense here. Um, what, so, so bigger, okay, go, go, I want to point out that there's a, there's a sneaky thing that happens here when in that what you just read where Rolls incorporates the idea of a baseline, right? So he says that it's okay as long as the, you know, the the rising tide lifts all boats, literally everyone's baseline, everyone has to get above their baseline if there's going to be inequality, but what the baseline is is a very debatable question, right? And like, if, and this goes back to our beginning of our discussion with Locke and Hobbes, you know, Rawls

[0:53:11] is saying the baseline is everyone gets an equal portion of the pie, so you've got to have a system that synergizes so that there's more pie for everyone, they can't be getting a smaller portion than they would get otherwise. But if you're coming from a very Hobbesian kind of perspective, you might think to the social contract is not equal pie, it's very unequal pie, so anything that roughly approaches some amount of even equal pie is still something that someone might want to buy into and is an improvement upon their quote-unquote baseline from the the state of nature. Yeah.

0:53:47 Andrew: Well, and that's, that was actually the the next question that I was going to ask you, which is, okay, we have justified, justified philosophically

[0:53:54] the idea of capitalism and said we're going to permit inequalities in the system, how do We bracket. What's a permissible inequality? Like, why are we- and and and let's tie this into, you know, contemporary discussion.

[0:54:07] Why are we, uh- and, you know, I think you and I both, uh, you- know, have identified as as being left of center, um, you know, why is our side complaining, complaining about, you know, tax benefits flowing disproportionately to the 1%, you know, the top 1%. Why should we care, right? We've said inequalities are permissible. So, you-

[0:54:32] know, what's the boundaries on that? Yeah. And Rawls has a few things to say about this. First of all, he thinks that it's vastly dysfunctional, right? He thinks that his goal is to create a system of justice is fairness and he thinks that a system of massive inequality and massive unfairness is not a stable social contract. It will collapse. So, I think the first reason, I think, just to say we need this maximum principle is because it sets the boundaries of what can be a stable society. And I think if you look at the current state of America, for example, where we've seen a huge increase in wealth-

[0:55:12] inequality within our lifetimes, that we are seeing that this brings with it a great degree of social instability and social dysfunction. Right? If you understand economics, you understand that all of that wealth pooling in a couple of hands is bad for the economy. It doesn't circulate, it doesn't promote more growth. So, I think those are the two, two, the two first reasons that I would throw out that we- we want to have these boundaries, these- these, um, uh, side constraints on- and again, this goes back to our discussion of utility versus deontology. Like, he wants to set side constraints on how you can maximize utility, and he might- I think- wants to do-

[0:55:52] it partly because, whether he'd admit it or not, he thinks those side constraints will better produce more utility. So, so then, where are we, right? We know, we know we're not going to just cut up the pie equally because that doesn't provide enough for economic growth. But we also know that giving, making a few people marginally better off versus, you know, the state of nature, while greatly enriching those at the top, is also destabilizing. So where-

[0:56:25] does Rawls say we should strike the balance? Yeah, I think it comes out in a- – and to the chagrin of people like Nozick, right- it comes out in a kind of Keynesian kind of economic worldview, where the balance we strike is, like you were saying, we create systems of social safety nets that make sure that people who have real serious moral luck don't fall so below their baseline that they are no longer living quality of life. We have things like, you could have an argument for minimum wage on this view, so that you have a living wage, because not only is that a good for our economy, but it buys into this principle.

[0:57:05] So, I think those are the kind of- the progressive income tax, like a lot of the liberal changes to workforces, like all of the liberal progress stuff, I think, is the embodiment of this second principle in action. Right? Unions, all of that stuff, right? 40 hour work weeks. That that's me. So, so you want to- you want to actually define out the- the- the second principle, the difference principle. Right. So, uh, he says social and economic quality, uh, have to be arranged so they are to the greatest benefit of the least advantaged, right, consistent with, uh, the just savings principle, and-

[0:57:46] attached to offices and positions to all under conditions of fair quality and opportunity. And he points out that that second part is primary. So one thing we should say about these two principles: they are ordered. So you can't violate the first principle for the sake of achieving the second principle. You always have to maximize liberty and equality of rights first, and then you have to maximize freedom of office and position. So that's part B of the second principle. And then you can have that maximum thing once you've set up those two side constraints. Yeah. And so let's- I mean, let's talk about that in practical terms. So-

[0:58:26] if, if you take the pie and whack it up, everybody equally, their utility share of goods would be five. Uh, but you could have an unequal distribution that permits somebody to get to seven, and everybody else is at a six. Then comparatively- you would prefer System B to System A, because when you- when you use the principle, when you go back and say, uh, I want to make sure that I am avoiding the worst possible scenario, uh, even-

[0:59:02] at the- at the expense of foregoing the- the top scenario, uh- okay, in system- A, I have a 100% chance of winding up with five. In system B, I have some chance- I have a one in, you know, whatever chance of winding up with seven, and the rest of the chance of winding up with six. But in every instance, the worst off, the least advantaged, move from five to six. So therefore, we would prefer that. But what Rawls would rule out would be a system that says, okay, now consider one where one person is at 20, almost everybody else is at six, but-

[0:59:40] a couple of people are at three, right? And you would say, no, Maximin would rule that out, and would say that's now- – we have the contours of what counts as too much inequality, because if there's any chance that you could move from five to three, you would veto that under the Maximin system. And- and again, I think- I really like you put it better than I did, and- and perhaps better than than Rawls does. What he says in Injustice is Fairness, the essential thing is not to

[1:00:16] allow the principles chosen to depend on special attitudes toward risk. For this reason, the veil of ignorance also rules out the knowledge of these inclinations. The parties do not know whether or not they have a characteristic aversion to taking chances. And so, in other words, to come up with a rule that describes 100% of people, you

[1:00:34] have to have a maximum level of inclusion. And the only thing that gets you there is something that is the utmost risk averse. And as you point out, and this is, again, this is a criticism, you know, one might say, no, just because I would take, I would endorse a riskier

[1:00:54] principle doesn't mean that I endorse all the lesser included. Absolutely, uh, principles to it, but- but Rawls believes that you do, uh, and- and- and certainly, um, you know, you can- there are lots of things that you can rule out that, you know, that would nevertheless include, uh- those with a greater, you know, propensity for risk-taking, right? Like, there's no, you know, going back to our monarchy

[1:01:21] example, right, there's no- that no rational human has a- a propensity for risk-taking that would say, yeah, I'll spin the wheel, and what the heck, I hope I'll come up with the one in 370 million chance of being lucky versus, you know, everything, versus the field of being miserable. Nobody plays it.

And it's problematic, I think, because you can see- I think part of why he's trying to do that is if I was a really- real risk- pro-risk kind of individual, I might be okay with the state of nature. And I don't think that he wants to say that there's anyone who would buy into the state of nature from the original position. But, oh, that's a- that's a really good plan. Let's- so let's kind of bring that full circle. I mean, one of-

[1:02:01] the- uh, one of- what I always thought was the- the best, um, the- the most interesting insight from- from Hobbes regarding the- the state of nature was, uh, his understanding that in the state of nature, we are all fundamentally equal. And,

[1:02:24] and the reason that we're fundamentally equal is because the- in, in comparison to what we face, uh, the differences among humans all of a sudden look very, very, very, very small. And- So even though I am over 40 and overweight and in relatively poor health, and my ability to outrun a lion is not good on the Savannah, but neither – like Usain Bolt's ability

[1:03:02] to outrun a lion on the Savannah is also not good in a relative sense. Right. So, you know, the because of this is the flip side of the of the argument that, you know, the worse the state of nature, the more rights you're willing to give up. But also the worse the state of nature,

[1:03:20] the more you recognize that in a fundamental way that that human beings are equal and that, you know, the things that we think of as making a difference really don't don't make a difference in in that kind of, you know, ultimate sense when matched up against, you know,

[1:03:38] what we face going out as a, you know, as a as a person where where life is solitary, poor, nasty, brutish. And I like that sort of practical – I mean this is – I was thinking about this. I wanted to work that in as sort of yet another answer to the Richard Spencers of the world that like, even if, even if you can't appeal to a moral conscience for recognition

[1:04:04] of equality that I thought Hobbes made a pretty, a pretty effective practical argument for equality almost 400 years. I guess if we lose the Richard Spencer's on number one, on number two we lose the libertarians, right? This is where you and I and the libertarians, like, genuinely right, when you, when you try to understand both the ethos and the, you know, potentially the, the problem of libertarianism, it's that they think that the state of nature is better than the social contract, fundamentally, right? Like, at the end of the day, they think a very loose to non-existent social contract is the ideal. And it's not because and it's because they also

[1:04:44] think like you do that, like all ultimately we're all equal and that in that state of nature, we could have a more healthy, natural relationship than in the the artificially created inequalities that are caused by any form of society. Yeah.

1:05:00 Andrew: But that argument is one that I'm prepared to have with the libertarians, because I think that that's an interesting question. The argument that I like to shut down, that so far I still feel pretty good about, from our episode, I think it's 22, of Libertarianism Is Bad and You Should Feel Bad, is the group of libertarians that goes one step further and says property is theft. It doesn't just say we're better off in the state of nature, we're better off with less government. That's an empirical question, and and it's worth debating, and it's worth having

[1:05:37] a discussion. And, you know, maybe my, you know, snide remark of like, oh, really, like Somalia, like maybe there's a better argument than that. Right. So I want to be challenged on that. But when you say there is a moral side constraint and the side constraint is you may not take my property, in my view, that's what's philosophically untenable. And I

[1:06:01] have yet – I continue to put out the call for our libertarian listeners to give me an answer to – Nozick is your guy, man. Well, I mean, he was up until he recanted Anarchy, State, and Utopia, but there's a great—I've wanted to pull this aphorism out because it's so appropriate in Trump's America, and it is attributed possibly apocryphally to

[1:06:27] Michael Sandel from—and we should say all of these people—Michael Sandel is a philosopher, a professor at Harvard. John Rawls was a philosopher, professor at

[1:06:40] Harvard. Robert Nozick, philosopher, professor at Harvard. So it was about discussions in the Harvard philosophy department. And Nozick is rumored to have said that it was distressing to him after writing "Anarchy, State, and Utopia" that he kept being

[1:06:59] lumped in with all these people with really horrible backgrounds. And Sandell is rumored to have said rather dryly, like, if Professor Nozick finds that his views put him in rather noxious company, he may choose to reflect upon the fact that they are, at core, rather noxious views, which is what qualifies as a sick burn in the Harvard philosophy.

[1:07:39] I was fortunate enough to audit a couple of classes. Rawls was not teaching when I was at Harvard Law School. Nozick was. He was a young man. He died young. Young uh And uh, and I was fortunate enough to audit one of his philosophy classes while I was up there. And

[1:07:58] He was a – he was a – really a towering intellect and a genuinely good guy. And also, befitting my status as a precious cinnamon bun, a very intense pot smoker. And I never participated, but I knew of people who were invited to— I don't want to give the game away here, but I want to let you know that philosophers tend to partake. Yeah. You know. I have no philosophical moral objection. Actually, it just, it's

[1:08:39] Just never been, uh, it's never been a part of. I'm not saying it's because necessarily it's across the board, as, as lawyers and drinking, but if there were data proving that it was literally the same across the board, I wouldn't be surprised by that data. I would have a confirmation bias towards that data, I suspect. Understood, understood. So, Uh, so at the end of the day, that's, that's now, at, at the, at the end of this long discussion, I think, I think we've given a, a pretty honest, an honest case for and against Rawls' theory of justice. And you wind up with those two principles of justice. The first, the equal liberty principle that says everybody is entitled to maximum and equal liberties consistent with equal rights for everyone else. And the second, the difference principle, which says that with exhaustible goods,

[1:09:31] Inequalities are permissible only to the extent that they are, that they are To the maximum advantage of the least advantaged, and then attached to positions and offices that are open to all, and and subject to the first principle. So, and that, that's a pretty good framework. I mean, if we, you know, we've derived this, and again, you know, there are, there are problems, but I would say none of the problems we've put forth is anywhere near as insuperable a problem as, for example, not

[1:10:01] Being able to define what property is for libertarians, right? Or, so I want to throw this out at your, you know, because you guys care to the atheist crowd, like, this is an answer to the question, well, where do you get rights from if God doesn't exist? Yeah, right. They don't have to be ordained by God, they can be, uh, uh, rationally developed, uh, and then, and then ratified. And then, and Then, you know, when you're talking about, uh, that you get this very, very weird question in,

[1:10:32] Uh, in apologetics of, um, yes, but, but why is it binding? Right. And it, as, as, you know, as if, uh, if it's not enforced, it, that doesn't count. And, and to me, right, the answer to that question has always been, because that's what morality means. Right.

1:10:51 Andrew: Like, morality is, is the question of, what do you find as a binding obligation upon yourself and your interactions

[1:10:58] With other human beings. Yeah, right. Like, I think, I think we can, we can, on, we can go a little one step further for their sakes and say, it's, it's binding because any reasonable individual, you can explain this to them, just like we have, and they will understand the steps, they will get the ideas, and they will see the value behind the conclusions. And you can't do that by just waving your hand to God. So it creates a system where you can actually create a rational argument for this made-up idea of rights that we totally made up and is super fake, but is very valuable. And we can justify it in a rational way without appeal to a divine command theory. And so, I

[1:11:38] think ultimately that's the takeaway here, That while we have something that is a thought experiment, the idea is for it to be a universally encompassing thought experiment. And from that, it gives us sort of a basis By which we can use to evaluate conceptually legislation as

[1:12:01] it comes out. And so, you know, when I passed very lightly over when we did our episode on the Republican tax plan, You know, Thomas and I passed sort of lightly over the fact that it is, you know, regressive

[1:12:18] in its implementation, right? Right. Because we sort of take as given, you know, OK, you know, we're left of center. We're Democrats. We favor a progressive tax system. You

[1:12:30] know, our Republican listeners aren't going to. But, you know, but let's focus on the political aspect of this. But but the question of, you know, why is a progressive tax system better than a flat or regressive tax

[1:12:42] system? Absolutely. This starts to answer that. This gives you a framework and, you know, and we have just, uh, I mean, it's a little bit insulting to say we've even skimmed the surface, right? We're sort of, you know, doing a, uh, a really high level, uh, survey, but, uh, but I, I've always found, I've always found this, uh, uh, incredibly interesting. And, uh, I really wanted the opportunity to, uh, to talk shop with you and have you on the show and, uh, and go through this. Philosophy is useful, man.

[1:13:44] The court answers the question, is discrimination on the basis of sexual orientation discrimination on the basis of sex, right? And, and that's a philosophical question, right? Like, that's not, that cannot be answered by an appeal to history or custom or what, right? That, that can only be answered by, by the question of, what, what does it mean to discriminate, right? If, if we are now, now, discriminating against a subsection of people of one gender, that is, we are discriminating against women who marry women, are

[1:14:24] we fundamentally discriminating against women or are we not? And, you know, I mean, I think you know where I come out on that. In this sort of situation, I mean, at the end of the day, they're going to write their conclusions, but there isn't an answer in the law, I think. There's no law that's going to say we have to interpret this this way. And there's no philosophy of language answer that says this is clearly derived from this in an analytic, necessary kind of way. This is a moral question. Do we morally want to treat this kind of similar behavior to this thing that we've already agreed

[1:15:05] is immoral? And they're going to create legal rules for how they can justify their moral conclusions. But at the end of the day, I think it's a moral claim. And this is why I'm always sort of I believe that politics and law are moral behaviors, their moral processes, and they have a lot going else with along with them. But that's that's their fundamental function. All right. Well, let's let's end on that. Why don't why don't you tell Folks how, if they have enjoyed hearing Aaron on this show, how they can get more Aaron in

[1:15:36] Their life? Definitely come check us out at Embrace the Void with my friend GW. We do a lot of this kind of philosophy stuff and a lot of very dark humor. You can find us on all the major podcast apps. And then you can also check us out at Twitter at ETVPod. And we're also on Facebook at Embrace the Void. So yeah, come check us out. Awesome. Thank you so much for being on the show, Aaron. I really appreciate having me on. All right, well, we

1:16:05 Thomas: Are, are recording ahead of time, so we can't thank our new patrons right now. Andrew is traveling. We'll just say, if you pledged the show, thank you so much. We will get you next week in our new patron thanks. Don't worry. We haven't forgotten about you. We promise. So what we can do, though, is get the answer to the last bar question. I'm really curious about this one. It seemed too easy. And, you know, there are easy bar questions, but sometimes there are deceptive

[1:16:33] Ones that only seem easy. So did I blow it? Let's find out. Oh, no associate this firm has ever failed the bar exam. No kidding. Yeah, this, this question seemed easy. It was

1:16:45 Andrew: A question about the doctrine of unconscionability. Uh, unconscionability is a defense to contract, right? So it says, uh, I don't, you shouldn't hold me to the terms of this contract because doing so would be unconscionable. And some of the factors that go into that, uh, the the only thing

[1:17:04] I'm gonna, uh, eliminate the uh, the, the suspense and tell you, it was an easy question. You did get It right. You are, uh, 29 of 49, and just one more question to go to get to that coveted, uh, 60. I can't wait for next week. The only thing you, you stumbled on that didn't, didn't cost you was, uh, you kind of laughed off answer A, uh which was, no, they might be able to find another store to sell them furniture, which proves there was no lack of bargaining power. Um, lack of bargaining power, or

[1:17:34] The degree of bargaining power is one of the elements of unconscionability. It's one of the things that the court looked to, right? You know, if something is given to you, right? So, if you're, well, what I'm trying to say is, I didn't think that made it not

1:17:46 Thomas: Unconscionable is what I was saying, but, but I guess, guess you're right that it, it makes sense that it could

[1:17:52] Be a factor. So, yeah, I kind of lucked into that, I suppose. And, you know, there are other factors that go, if it's in the fine

1:17:59 Andrew: Print, we have talked about, uh, you know, browse wrap versus click wrap agreements. You know, the question of unconscionability is, uh, does something rise to the level where the courts are going to say we don't really think a contract was formed here, right? Because remember, contract doctrine is meant to to protect where there is a meeting of the minds, where the parties really get together and agree, and to ascertain to what did they agree. And if you, you know, if you hide something in the fine print and you don't tell them, and it comes about in a truly oppressive situation and the terms are substantively unfair, and you had all those in spades in this question, right,

[1:18:36] That, then, then sometimes the courts will will strike that down. Very, very rare, right? Um, but uh but it is it is a valid contract defense and you got it right all right so congratulations well good

1:18:49 Thomas: I'm glad. You know, I, I see what you're saying about answer A. I suppose that, that makes sense, but, uh, yeah, it does seem like it was

[1:18:55] Overall a pretty easy question. Well, I, oh, I was just trying to take you down a peg. Yeah, I'm getting, I get it, I'm getting too cocky About this, that's true. I mean, I mean, this test is incredibly easy, but I'll try not to to get too overly confident. Do you think we're gonna have a a winner future, and do you think, present Andrew, do you anticipate a future

[1:19:14] Andrew, I am sure there will be a future winner. Well, in that case, I think we'd better throw it over to future Andrew. Jump in your time machine, who is this week's lucky winner? Well, Thomas, there were a terrific amount of answers to TTTB this week, including a lot of folks who took advantage of the expansion to 280 characters. But I think our best answer came from Frank Dollarhide, who is at sonofsamhain on Twitter, pretty good handle, who very pithily says, D, because of the universal law of "I licked it, so now it's mine," must apply. So everyone

[1:19:54] give Frank Dollarhide a follow. That is at S-O-N-0-F-S-A-M-H-A-I-N, at sonofsamhain. Great job on that answer.

1:20:05 Thomas: All right, and that's it for our show today. Thank you so much to Aaron for coming on. Really enjoy his stuff. Check out his show. He's great. And I think, too, there's such a good conversation to be had, many good conversations to be had about the intersection of philosophy and law. It's really cool. I think they're very complementary and vital parts to each that complement each other. So

[1:20:28] good stuff. With that said, we'll see you next week. We'll get back to to a regularly scheduled rapid response kind of thing. And it will be, Andrew will be in Australia, but we're making it happen just for you guys because we love you so much. Absolutely. See you then. Stop breaking the law,

[1:20:47] asshole!

[1:20:53] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

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