Your Royal Highness Crown Prince Haakon, Minister, Mayor, Representatives of the Holberg Committee, Esteemed Guests, Absent Friends:

I am more honored than I can say to receive the Holberg Prize. Of course, the Prize is shared with terrific coauthors, colleagues, teachers, students, friends, and family. It is both an honor and a joy to pay tribute to them right now.

I begin with a scene from a movie from 2005, called “Walk the Line,” about the great American country singer, Johnny Cash. In the scene, Johnny Cash is a young man, trying to make a start in the music business. He obtains an audition with the celebrated Sam Phillips, who discovered Elvis Presley.

Cash begins by singing a song about how devoted he is to God, and how much peace he has within, and how he wants to shout it, and how all this is real. Philipps is not impressed. He cuts him off. He tells him that he “doesn’t believe him.” He adds, “We've already heard that song a hundred times. Just like that.”

Cash is confused and defensive. He objects that Phillips did not let him finish – in the jargon of the music business, “Well, you didn't let us bring it home.” Here is Phillips’s response:

Bring... bring it home? All right, let's bring it home. If you was hit by a truck and you was lying out there in that gutter dying, and you had one time to sing one song. Huh? One song that people would remember before you're dirt. One song that would let God know how you felt about your time here on Earth. One song that would sum you up. You tellin' me that's the song you'd sing? That same . . . tune we hear on the radio all day, about your peace within, and how it's real, and how you're gonna shout it? Or... would you sing somethin' different. Somethin' real. Somethin' you felt. . . .

Cash answers, “I got a couple of songs I wrote in the Air Force. You got anything against the Air Force?”

Phillips responds, “No.”

Cash shoots back, “I do.”

He sings a song about longing and rage. The song is about freedom, and even more, it is an expression of freedom. It’s a rebel’s song. Cash projects a sense of confidence – along with wonder, I think, in his capacity to sing something real, something of his own, something that he actually felt.  His career is launched.

When I started teaching at the University of Chicago in the 1980s, three songs were on the radio all day. The first song claimed that the political process is a war among self-interested groups, who seek to obtain benefits or to impose burdens. In short, the democratic process is interest-group struggle.

The second song claimed that the entire purpose of a well-functioning constitutional order is to protect private rights – property, liberty – against the government. The second song overlapped with the first. If the democratic process is just a matter of interest-group struggle, rights of property and liberty need a lot of help.

The third song claimed that human beings are rational, self-interested profit maximizers — or at the very least, that they make rational choices about how to achieve their ends. If they discriminate on the basis of sex, if they smoke a great deal, if they spend their money foolishly, if they end up poor or sick or miserable – well, they are rational, and that is what they want to do. Who are we to object?

I did not like those songs. I did not believe them. They seemed to me lifeless, deadening, a form of posturing – like a man flexing his muscles and showing people how strong he is. They also felt like an orthodoxy. Of course, those who sang the songs were extremely impressive – precise, clear-headed, and brilliant. They won plenty of prizes. But I had something against my own Air Force.

At times – and for me it is very rare – an idea comes to mind, and I am lucky enough to feel a tingle along the back of my neck. It is a physical feeling. The tingle has surprise in it – a kind of “whoa”— and something stronger than delight.  

We have an expression in English: “a tiger by the tail.” The tingle is like having a tiger by the tail. I can’t always know, of course, whether the tingle signals a good idea, or an important idea, or a true idea. But (and here’s a confession for you) I know.

The first time I had that feeling, I think, was around 1983, when I was working on constitutional law. Investigating the details of many legal doctrines – equality, liberty, property, religion, freedom of speech – an explosion went off in my mind: I saw a pattern. There was a single foundation for each and every one of them: Whenever burdens are to be imposed, or benefits to be given, it must be for some public-regarding reason. In other words, government must offer an intelligible justification for hurting or helping people. “Naked preferences” are forbidden. (So much for democracy as interest-group struggle.)

That seemed to me a deeply democratic principle, connected with human dignity and equality, and freedom too. The ban on naked preferences also seemed to me to be connected with the deepest foundations of the world’s great constitutional orders. It is at the heart of the idea of deliberative democracy – a system of government that combines political accountability with an insistence on reason-giving. In deliberative democracies, what matters is not power but what an earlier Holberg laureate, Jürgen Habermas, calls “the forceless force of the better argument.” No fake news there.

I confess that my emphasis on deliberative democracy, and the ban on naked preferences, encountered a lot of resistance from my Chicago friends and colleagues. Some of them hated it. Some of the discussions were not a lot of fun. But there was that tingle.

The tingle came back a few years later, when I was struggling to put together some lectures on the rule of law. For what seemed like an impossibly long time, I had nothing, or nothing good – only clichés about the peace within, or something like that.

But on one day it occurred to me. If you look at well-functioning legal systems, or organizations of any kind, you will often find something distinctive, solid, and indispensable: incompletely theorized agreements, meaning agreements on what to do amidst the deepest and most intractable theoretical disagreements.

We might, for example, believe in freedom of speech, even if we are unsure about exactly why. We might be committed to democratic self-government, even if some people invoke religious reasons, others invoke Kant, and others invoke utilitarianism. Incompletely theorized agreements are a way to allow people to live together. Without them, social order would break down. They also show a form of mutual respect.

By refusing to tackle people’s foundational commitments, citizens announce to one another: “Let us find a way forward, with civility and respect, while acknowledging, and making space for, uncertainty or profound differences on life’s deepest questions.” International order is often made possible through that route; the Universal Declaration of Human Rights is just one example. Consider the views of Jacques Maritain, a philosopher who participated in some of the deliberations that led to the Declaration. Responding to public astonishment that people of radically opposed views had agreed on rights, Maritain liked to say: "Yes, we agree about the rights, but on condition that no one asks us why." (Tingle.)

In the late 1980s, I began to read the early work in what is now called “behavioral science.” Daniel Kahneman, Amos Tversky, and Richard Thaler had something to say about human beings. Contrary to one of Chicago’s favorite songs, we are less than fully rational, and we are not so self-interested. Sometimes we are kind – and we sacrifice our economic self-interest to show kindness (and to punish unkindness). Often, we misperceive risks. Sometimes we emphasize today and tomorrow, and do not think about next year or next decade. For each of us, that can create a lot of trouble.

Here’s a secret: A lot of findings in behavioral science are not only intriguing but also at least a little bit funny. For example, the vast majority of people think that they are better than the average driver – and almost everyone thinks that their sense of humor is better than average. (A recent finding of my own: People would be willing to pay only a little money to be able to use Facebook – but they would demand a lot of money to give up the right to use Facebook.) Behavioral scientists have something in common with poets and novelists: They describe human foibles with great specificity, alongside warmth and affection.

There are plenty of tingles here. For decades, behavioral science did not have much to say about law or policy. But what if we try to improve both of these with an accurate sense of what human beings are really like? We can rethink, and we are rethinking, a lot of our practices. We can make people safer and more free. We are able to dent poverty, sexism, racism, and climate change. We are able to combat violent extremism. We are able to reduce suffering and save lives – and have some fun in the process.

My most recent tingle came just last year, when I moved to Concord, Massachusetts, which is where the American Revolution began. More specifically, I moved to a house, built in 1763, that helped start the Revolution. The house held munitions on April 19, 1775, and on that very day, British military forces came to Concord, to remove those munitions from several homes. That’s when the fighting began.

Constitutional law is one of my subjects, but I had never studied the American Revolution before. What I learned set me on fire, more or less. I learned that in the early decades of the eighteenth century, Americans lived in a traditional society, defined by established hierarchies, which affected people’s daily lives, even their beliefs and their self-understandings.

The great historian Gordon Wood writes that “common people” were “made to recognize and feel their subordination to gentlemen,” so that those “in lowly stations . . . developed what was called a ‘down look,’” and “knew their place and willingly walked while gentlefolk rode; and as yet they seldom expressed any burning desire to change places with their betters.”^[i] In Wood’s account, it is impossible to “comprehend the distinctiveness of that premodern world until we appreciate the extent to which many ordinary people still accepted their own lowliness.”^[ii] The idea is related to Jon Elster’s work on “adaptive preferences:” the fact that people’s preferences are often an adaptation to, or an artifact of, background injustice.

Over the next twenty years, the world was turned upside down. This was a revolution of everyday values as well as politics. It made the ideals of contemporary constitutionalism not only possible but inevitable (there’s the tingle).

More specifically, it was republicanism, with its proud commitment to liberty and equality, that obliterated the premodern world. With amazement, John Adams wrote that “servility to Aristocratical Pride, was never so totally eradicated from so many Minds in so short a Time.”^[iii]  David Ramsay, one of the nation’s first historians (himself captured by the British during the Revolution), marveled that Americans were transformed “from subjects to citizens,” and that was an “immense” difference, because citizens “possess sovereignty.”^[iv]

Thomas Paine, one of the era’s theorists of revolution, freedom, and democracy, put it this way: “Our style and manner of thinking have undergone a revolution, more extraordinary than the political revolution of the country. We see with other eyes; we hear with other ears; and think with other thoughts, than those we formerly used. We can look back on our own prejudices, as if they had been the prejudices of other people. We now see and know they were prejudices and nothing else; and, relieved from their shackles, enjoy a freedom of mind, we felt not before.”

The thinking behind the Revolution placed a new focus on the aspirations, the needs, the dignity, and the agency of ordinary people. Hierarchies of all kinds were bound to disintegrate – through the simple assertion, immortalized in the nation’s Declaration of Independence and reverberating throughout the world, that all human beings are created equal. That assertion helped paved the way for social movements of all kinds, including the movements for equality on the basis of race and sex.

Recall Sam Phillips’ words to Johnny Cash: “If you was hit by a truck and you was lying out there in that gutter dying, and you had one time to sing one song. Huh? . . . Somethin' real. Somethin' you felt.”

Every one of us is mortal. All of us are fragile. But every one of us is also blessed with something: the opportunity to sing.

In 2017, before I felt the most recent tingle, I was actually hit by a car, while walking on the street at night in Concord. I was hit hard. I was found lying out there in a gutter, unconscious. I was lucky: I wasn’t dying, or close to it. But it wasn’t good, and it wasn’t exactly fun.

The song of human equality is something real. It’s a privilege to sing it.