26 April 2007 - Is Israel an affirmative action state for Jews?

In defending Israel’s right to exist, several South African Jewish leaders have used the argument that Israel is like an “affirmative action state” for Jews. In the South African context, this is an attempt to link Jewish national aspirations with black aspirations and with a policy that the ruling party considers beyond question. Yet I am quite uncomfortable with the analogy, for two reasons.

First, affirmative action is a policy that both addresses and creates a class of dependent beneficiaries who cannot, theoretically, succeed on their own. That is not how Israel was created, nor how Israel has survived. Israel’s critics, of course, insist it would not exist without U.S. aid. That is untrue, but the “affirmative action” analogy lends support to that view and denies Jewish agency.

Second, affirmative action is a policy that is not only controversial but is also considered, even by its most vocal proponents, to be something of a failure. It has opened new opportunities for blacks at the top, but it has not made much of a positive impact at the entry level, and may even have had a negative impact in several cases (the South African National Defence Forces provide one example).

I am not talking about specific Israeli policies such as the Law of Return, which is a form of affirmative action (though perhaps one that could do with some reform). I am talking about arguments that justify Israel’s very existence by referring to a policy that is theoretically aimed at redressing past injustice but creates, in the eyes of many, new injustices and new victims without achieving its original goals.

Affirmative action has fallen into a rhetorical trap: criticizing the policy is taboo, but defending it is becoming impossible. That is the trap that Israel, too, will be caught in if the country’s existence is justified solely as a response to antisemitism—and not as a worthy goal in itself, consistent with ideals of democracy and self-determination. Without independent justification, any policy of restorative justice ultimately fails.

The pitfalls of affirmative action—both the policy and the type of debate that surrounds it—were illustrated recently in South Africa when University of Cape Town philosophy chair David Benatar attacked affirmative action on ethical grounds in a lecture entitled “Justice, Diversity and Affirmative Action." His lecture prompted a stormy exchange which ran amok in the local press.

(A note about Benatar: he is a cool guy, a wonderful mix of contradictions. An Orthodox Jew and a vegan, he clearly believes in doing the right thing on earth and yet has published a book arguing that it might be better if none of us had ever been born in the first place. The title, Better Never to Have Been: The Harm of Coming Into Existence, was nominated for Oddest Book Title of the Year by bookseller.com.)

Benatar’s argument went roughly as follows: the best kind of affirmative action policy is one aimed at equal opportunities. More severe versions will allow weaker candidates to benefit. This is usually justified as necessary to rectify past injustice, but race is not necessarily a proxy for past injustice. Furthermore, it is impossible and absurd to define “race.” We have to find better means of rectifying injustice.

University Deputy Vice-Chancellor Martin Hall responded: Benatar bases his argument on UCT policies, but “there are no rules or guidelines.” Unlike American policies (?), South African affirmative action has to address past injustice. Quality and racial diversity are not necessarily mutually exclusive. We do not use a biological but a social definition of race at UCT, and do not push it to extremes.

To this, Benatar replied: Hall did not respond to my arguments. The policies I described do reflect UCT practices, which Hall describes with euphemisms like “equity”. UCT does not use a “social” definition of race, because it classifies people without knowing more than color. Hall prefers UCT’s policy to remain ambiguous but still cannot defend it except to associate my views with others’ extreme ones.

Other people also weighed in: Laurie Nathan of UCT accused Benatar of failing to base his arguments on empirical evidence; Sam Radithlalo, also of UCT, claimed Benatar was saying that black appointees were necessarily unqualified and also not truly disadvantaged; Robert Segall argued that appointing “less qualified, but nevertheless appointable” candidates was a “modest price” to pay for past injustice.

Then there was the inevitable argument that the standards of quality themselves are already contaminated: “The unfairness is only self-evident from the vantage point of the dominant ‘western’ or ‘white’ culture – and exactly because that culture provides the ‘universal norms and standards’ according to which fairness must be measured,” said Pierre de Vos of the University of the Western Cape.

Nathan’s argument is easily dismissed in two ways. First, supporters of affirmative action are as obliged as critics to provide empirical evidence that it works—more so, in fact, given the costs—but they never do so (nor does Nathan). Second, the empirical evidence that does exist from affirmative action policies around the world suggests that these policies do not achieve, and in many ways frustrate, their goals.

As Thomas Sowell of the Hoover Institution has observed: “Despite sweeping claims made for affirmative action programs, an examination of their actual consequences makes it hard to support those claims, or even to say that these programs have been beneficial on net balance – unless one is prepared to say that any amount of social redress, however small, is worth any amount of costs and dangers, however large.”

Radithlalo, like Hall, simply misconstrues Benatar’s argument. Benatar did not say that anyone appointed under a race-based affirmative action policy is necessarily unqualified or privileged, but that such policies are likely to lead to less qualified and less disadvantaged people being appointed. Radithlalo takes Benatar’s criticism personally—which shows how hard it is to have a rational discussion of this subject.

Benatar responded well to Hall’s arguments, but I think three more points are in order. First, just because UCT’s policy does not aim to achieve exact demographic proportions does not mean it is not absurd or will not lead to absurd consequences in individual cases or in general. Certainly the ruling party believes UCT’s policy should conform to demographic targets of ninety percent black, ten percent white.

Second, Benatar could have pointed out the many ways in which affirmative action in South Africa actually harms the poor. As Robert Guest pointed out in The Shackled Continent, hiring less qualified people in the government makes public services—which the poor depend on—more scarce; hiring less qualified people in the private sector holds back economic growth, limiting job creation for the unemployed.

There is an PhD dissertation in economics waiting to be written about whether the advances some black South Africans have made since 1994—such as increasing numbers of households moving from the poor to the lower middle class—were due to affirmative action policies, or to the dismantling of discriminatory apartheid laws. I think the evidence would show affirmative action has actually retarded progress.

Third, the ambiguity of UCT’s policy is not a virtue, but actually its worst possible vice, because it will allow the administration to make wholly arbitrary decisions and defend them in terms of social justice. Administrators could, for example, deny use the policy to settle personal scores, or target certain people on the orders of the government, and the victims would be almost powerless to protest their exclusion.

This is a problem with South Africa’s racial policies in general, which are generally classified as “transformation.” Politicians, judges and business leaders argue that “transformation” is a constitutional imperative, but the word does not actually appear in the constitution. It has many contradictory meanings, not all of them benign, and South Africans are letting the government decide which ones to use.

Not only does the vagueness of “transformation” create the potential for erosion of the rule of law; it is, in itself, a severe blow to the rule of law because it allows the government to determine, on a whim, what the law should be. This is the great political problem at the heart of affirmative action in South Africa. A fixation on race brought down apartheid and it could destroy South African democracy, too.

As Paul Trewhela writes, responding to Professor de Vos: If ‘an objective standard does not exist’ in human affairs, there is no law. . . . In reality, far from ‘objective criteria’ merely helping ‘to hide the prejudices of the powerful behind a façade of neutrality,’ nothing would make law more subject to the naked interests of the powerful than his relativism.
The professor argues for the end of law.”

And so, to return to Israel. It does little good—and perhaps much harm—to equate Israel with a policy that may undermine the rule of law, to rest Israel’s legitimacy on the continued magnanimity of the international community, to base the case for Israel solely on Jewish victimhood. I understand the rhetorical thrust, but I dislike the comparison to affirmative action almost as much as the apartheid analogy.