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Article Excerpt
During the first Gulf War (1990), the state of Israel made gas masks available to its citizens. In this context, a bearded man called Akiva Nof petitioned the Israeli Supreme Court. He argued that the state's denial of his request to receive a free gas mask specially adjusted for bearded men (1) was a violation of his rights. Such masks are more than double the price of regular masks, and they were given free of charge to Ultra-Orthodox Jews, who grow beards for religious reasons. Nof argued that once one financial exemption had been granted, a refusal to grant it to him as well violated his right to equal treatment. His beard, he claimed, had been part of his identity for decades, and the state should not discriminate against him vis-a-vis the bearded Ultra-Orthodox Jews. The court accepted Nof's petition. However, in a very interesting obiter dictum in the final paragraph of the decision, the Supreme Court judge Tova Shtrasberg Cohen wrote as follows:
[T]here is a fundamental difference between a situation in which a person is not allowed to grow a beard ... in such a case the arguments about harming basic rights ... are valid ... and a situation in which a man can grow a beard but, when requesting a special mask, would be required to pay a special lee, since the state, for financial reasons, avoids allocating special masks to everybody. If the state had avoided allocating special masks free of charge for sensible reasons, I doubt if I would have intervened. However, since the state decided to allocate special masks free of charge for certain bearded men, the distinction is sufficient ... to overturn this discrimination. (2)
I shall understand Shtrasberg's position as arguing that once a baseline allocation has been decided upon, individuals with further preferences ought to bear the full cost of such preferences. The cost of a cultural preference, in other words, should be privatized.
In this article I shall offer a different view from that suggested by Judge Shtrasberg (without disputing the decision of this specific case, which was decided upon a different premise, that of discrimination between requests for exemptions). I shall argue that some cultural preferences are important enough to hold the state duty-bound to (partially) support them, even if there is a cost for other citizens. I shall concentrate on chosen cultural preferences, with less emphasis on cultural preferences that are the result of circumstances. I shall argue that even in cases of chosen cultural preferences, (partial) accommodation of the preferences is justified.
The article will proceed as follows: first, I will explain the chance/ choice (hereafter "C/C") dichotomy that constitutes the background of the issue of cultural exemptions. In general terms, the C/C dichotomy means that costs stemming from circumstances ought to be funded by the state, whereas costs resulting from personal choice ought to be funded solely by the individual. This is a simplification, of course, and I will have more to say about this in sections 1 and 3. Second, I will explain in brief the cultural rule and exemption controversy, and present it as a particular case of the C/C dichotomy. Cultural exemptions, throughout this article, refer to state accommodations of cultural preferences that differ from a previous baseline allocation or rule. Third, having set the groundwork for my argument, I will explain why the C/C paradigm, as applied to the cultural sphere, misses a crucial point, namely, the content of preferences. I will argue that some preferences should (and some actually do) enjoy a policy that accommodates some of the costs that result from them, regardless of the C/C distinction. I will further argue that some (cultural) preferences ate (similarly) important enough to be accommodated by the state, and therefore to win (partial) immunity from the influence of majority (cultural) preferences. Lastly, I will return to cultural issues in general, and Nof's case in particular, and explain what I consider a proper response to such cases.
1. Chance, Choice: Why is the Distinction Important?
One of the important distinctions in contemporary political theory is that between chance and choice. (3) As the chance/choice distinction plays a major part in cultural disputes, it is important to clarify this distinction. Ronald Dworkin writes: "individuals should be relieved of consequential responsibility for those unfortunate features of their situation that are brute bad luck, but not from those that should be seen as flowing from their own choices." (4) The distinction between chance and choice is widespread, especially among a group of scholars perhaps best known as luck egalitarians (hereafter "LE"). (5) In this article I will comment on a common feature of luck egalitarianism, rather than analyzing the theory of any specific scholar. The main feature that interests me is the claim that individuals should bear all the costs resulting from their choices. Throughout the article, when I refer to the C/C distinction, I shall refer to it in this strict sense. In other words, the focus of the article will not be the distinction between chance and choice, but rather the proper policy response(s) to costs resulting from choices.
Three main arguments support the chance/choice distinction. First, it is widely agreed that individuals should not suffer the consequences of arbitrary sources of inequality. (6) This issue is complex because what exactly counts as arbitrary and what lies beyond the control of a given person in a given situation are matters that can be disputed. However, I will say very little about this aspect of the C/C dichotomy and concentrate primarily on the other side of the coin: the degree of reasonable and justified cost internalization of the consequences of acts resulting from personal choices. The second argument that justifies the C/C distinction emphasizes the importance of individual responsibility. The third argument that supports the C/C distinction is more complex and stems from considerations of neutrality. One of the main liberal arguments is that a liberal state ought to be neutral towards various conceptions of the good--religious, secular, or otherwise. (7) The main reason for this stance is that most liberal states today exhibit a reasonable pluralism of values, conceptions of the good, comprehensive world views, and so on. (8) Therefore, a state that prefers conception X over conception Y discriminates against segments of its own population. Such discrimination may harm the ability of some individuals to conduct their lives as they see fit, thus violating equality. (9)
Given that a state's neutrality functions as a normative limit on state policies, the importance of the C/C dichotomy becomes clearer. If the state allocates funds for a certain (chosen) preference, it would itself be showing a preference for one specific conception of the good over others, and this action would discriminate against other people's conceptions of the good, thereby violating state neutrality. Therefore, the state should avoid funding any preference, whatever that preference may be. For example, if Janet loves the music of Britney Spears, and would like to organize a Britney Spears show in her town, she can organize such an event, but the state should not prefer Janet's love of Britney Spears to (let us say) Josh's love of classical ballet. If the state funds Janet's preference but not Josh's, it will be easier for Janet to exercise her preference. Such a policy will amount to discriminating between Janet and Josh and therefore should be avoided.
Among the arguments supporting the C/C distinction, I will accept the argument in support of compensation for arbitrary sources of inequality, as well as the argument in support of individual responsibility (albeit with certain qualifications (10)). However, I will challenge the argument about neutrality. I will claim that the neutrality argument is often presented as if neutrality can only mean a "hands-off" approach. But neutrality can be understood in an even-handed fashion. (11) An even-handed approach will not violate neutrality as long as allocations remain inclusive enough (see sections 3 and 4.a for elaboration).
The move from neutrality to the C/C distinction requires more than the argument that emphasizes the wish to avoid discriminating between conceptions of the good. In order for the neutrality argument to support the C/C distinction, luck egalitarians would have to relate to preferences in a noteworthy fashion, as follows. C/C supporters insist that no one preference should be preferred over any others, and that people's preferences should be taken as they are. No attempt is being made to first offer distinctions among different preferences as long as the preferences do not involve a violation of the criteria of justice. (12) Therefore, the content of the preference (see section 3.a) does not play any part in the importance that the C/C distinction attaches to the preference.
This relation to preferences leads to a second phenomenon, namely, that the aggregated outcome of preferences is not taken as meaningful by the C/C point of view, (13) regardless of the fact that aggregated preferences can influence the ability of a given individual to maintain a given (cultural) preference. If Janet generates enough enthusiasm for Britney Spears, she may succeed in bringing a Britney Spears show to her town, while Josh will have to travel to watch ballet. In other words, Josh's preference for classical ballet will become more expensive due to his inability to draw enough people to share in his love for it (assuming that people can afford one of the two options).
It may be argued that the aggregated outcome of preferences is unimportant, given that the worst-case scenario is that poor Josh has to travel to see ballet. However, in section 3, I will attempt to show how certain assumptions--specifically, the understanding of neutrality as a "hands-off" approach, a lack of regard for the content of preferences, and a neglect of the importance of the aggregation issue--may create significant violations of individual liberty that are sufficiently broad in scope to justify state involvement. The C/C dichotomy plays a crucial rule in contemporary discussions about culture, to which I now turn.
2. Cultural Exemptions and the Chance/Choice Dichotomy
In order to move closer to the example we started with, a shift from the theoretical aspects of the C/C dichotomy to particular issues involving cultural disputes is required. I will concentrate on one specific cultural issue: religious and cultural requests (mainly those that ate the result of choices) for resources that go beyond a generally applicable baseline of allocation or rule. These requests can take several forms, including requests for a larger allocation of resources, exemptions from generally applicable rules, and so on. Examples include the following: requests of minorities for exemptions with regard to days of test (especially the wishes of minorities to avoid working on their traditional days of rest on top of those days that are required by law following the majority's culture); requests of minorities for funding of linguistic and/or territorial needs; (14) and, of course, the issue of beards and gas masks with which we began. The reason for citing such cases is that the focus of this article is the detrimental influence of majorities' tastes on holders of less commonplace cultural preferences--especially in cases in which the majority tastes are adopted by the state in the creation of public policy. This focus is particularly important given that luck egalitarians are often of the opinion that the holders of less commonplace cultural preferences should change their preferences, or bear the full cost of their preferences. (15)
Maintaining the C/C logic, some political theorists suggest a particular response to requests for cultural exemptions. (16) First, the theorist...
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