by Robert Steinbuch*
The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
As a law professor who obtained my non-law degrees from Penn, I’m intrigued by the flurry of commentaries on the Philadelphia Inquirer op-ed by legal scholars Amy Wax (Penn) and Larry Alexander (San Diego) advocating the following set of values:
“Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.”
Penn’s founder, Ben Franklin, famously believed that laws without morals are in vain, but Wax and Alexander do not seem to share this activist view. Their goal, which did not enlist government to regulate morals, is a modest one. They seek only to persuade.
Wax and Alexander contextualized their advice by: (1) explaining how it overlaps with the practices of a subset of society in the 1950s; (2) explicitly conceding that their preferred mid-century values resided amongst abhorrent contemporaneous ones; (3) characterizing the preferred values as “bourgeois”; and (4) critically providing modern examples of counter-values in sub-cultures of each of the three largest cohorts in America. And then all hell broke loose.
Addressing (even listing) all of the responses to Wax and Alexander — some of which assume extraordinary hermeneutic skill at the discovery of hidden meaning in simple language — is well beyond the scope of this piece. Furthermore, I do not write in order to necessarily agree with all the claims made by Wax and Alexander; for example, as a government-transparency scholar, I believe it is no less important to respect public authority than to preserve avenues for questioning it.
One of the milder reactions to the Wax/Alexander op-ed was the cultural-relativistic claim that promoting one set of values above others is inherently bad. Penn Law Dean Ted Ruger — to his credit in this often speech-squelching time — wrote a generally academic-freedom-respecting counter-article stating: “as a scholar and educator I reject emphatically any claim that a single cultural tradition is better than all others.”
While it’s possible to adopt such a view (emphatic or otherwise), this proposition is inconsistent with how most participants in modern Western culture actually operate. For example, modern Western culture holds that women are equal to men and should be treated so. We’ve enshrined this notion into vast realms of the law so as to punish non-culturally-conforming behavior.
As such, modern Western culture adherents typically believe that the Saudi cultural tradition of subjugating women is not only bad for America, they believe it is bad for Saudis. In other words, the equality of women in Western culture is clearly viewed as a morally superior norm, regardless of cultural tradition. After all, cultures aren’t preferences regarding ice-cream flavors, which don’t reflect any greater belief system. Thus, while I prefer chocolate gelato over vanilla, I don’t care whether you disagree when choosing the contents of your cone. In contrast, I believe in treating women equally, and I care greatly if you act on a contrary conviction.
Indeed, the notion that one set of values is superior to others is ubiquitous in American society, drives much of American politics today, and explains the activities of various advocacy groups. If you have any doubt, then just try to engage three strangers in a discussion of abortion, gun rights/control, and health care. You likely won’t find many value relativists.
And we see the same phenomenon amongst religions and religious people throughout this country. The dominant religious groups in the U.S. believe in G-d and in the supremacy of their view of divinity. That doesn’t mean they don’t respect or tolerate others’ beliefs and practices. But let’s be clear, most religious groups believe they’re right and everyone else is wrong (or, at least, less right).
Accordingly, anyone who rejects the claim that a single cultural tradition is better than all others is necessarily not a subscriber to most religions (or has, perhaps, defined the term “cultural tradition” in a meaningless fashion). This supremely relativistic philosophy is a minority view that is largely reserved to cultural elites and academics, albeit not all of them.
In fact, the Wax/Alexander proposal is not a moral claim of cultural optimality at all. Rather, they assert, about their bucket of values, that “[a]dherence was a major contributor to the productivity, educational gains, and social coherence of that period.” This consequentialist position is ultimately subject to empirical verification. At minimum, it’s a plausible hypothesis — so much so, in fact, as to be mildly banal.
Thus, at bottom, Wax and Anderson have stated a position that certain values lead to better individual and collective outcomes. If discussants were to address the substance going forward, they would marshal evidence in support of their positions. Penn Law’s dean chose a different path. He — somewhat ironically, given his position — eschews the debate entirely. He’s free to do so, no doubt, but I don’t think that should stop the rest of us from engaging in an intellectual discourse regarding how to improve the well-being of Americans.
*Robert Steinbuch joined the Bowen School of Law faculty in 2005 after several years in government and private practice. Professor Steinbuch’s government service includes working for the United States Court of Appeals, the United States Department of Justice, and United States Senate Judiciary Committee. Recently, Professor Steinbuch served as a Fulbright Scholar and continues as a Peer Reviewer. Professor Steinbuch recently coauthored, along with John Watkins and Richard Peltz-Steele, the Arkansas Supreme Court cited treatise: The Arkansas Freedom of Information Act, Sixth Edition.