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Queensland University of Technology Law and Justice Journal |
Louis Pojman[*]
Justice is a constant and perpetual will to give every man his due. The
principles of law are these: to live virtuously, not to harm
others, to give his
due to everyone. Jurisprudence is the knowledge of divine and human things, the
science of the just and the unjust.
Law is the art of goodness and
justice. By virtue of this [lawyers] may be called priests, for we cherish
justice and profess knowledge
of goodness and equity, separating right from
wrong and legal from the illegal. (Ulpian in the Digest of the Roman book of law
Corpus
Juris. ca 200 AD)
There is an ancient tradition, found in both the mainstream of Western
philosophy and religion as well as Eastern thought (viz. the
doctrine of
karma), that justice consists in giving people what they deserve - often
rendered as giving each person his or her due. In our day desert,
while still
recognized by the ordinary person, has been undermined or completely dismissed
by the leading political and social philosophers
of our time, including John
Rawls, Ronald Dworkin, Thomas Nagel, Brian Barry, Robert Goodin, J J C Smart,
John Schaar, Kai Nielsen,
T M Scanlon, Robert Young, Michael Young, Iris Young,
Derek Parfit, and Richard
Wasserstrom[1] -who - reject or
undermine the classical idea of justice as rewarding desert or merit as
inegalitarian and based on false consciousness.
It is inegalitarian in that
meritocracy is inherently hierarchical, holding that some people are better than
others. It is based
on false consciousness, since the view of human nature these
philosophers accept tends to be skeptical of deep moral responsibility.
Recall
Smart’s famous retort, “The notion of the responsibility [for an
outcome] is a piece of metaphysical
nonsense”.[2] John Kleinig has
remarked, “The notion of desert seems to be consigned to the philosophical
scrap heap”,[3] and Brian Barry
writes,
In examining the concept of desert we are examining a concept
which is already in decline and may eventually disappear. ‘Desert’
flourishes in a liberal society where people are regarded as rational
independent atoms held together in a society by a ‘social
contract’
from which all must benefit. Each person’s worth (desert) can be precisely
ascertained - it is his net marginal
product and under certain postulated
conditions (which it is conveniently assumed the existing economy
approximates) market prices
give each factor of production its net marginal
product. Life is an obstacle race with no special provision for the law but if
one
competitor trips up another, the state takes cognizance of this fact; thus
compensation is given only when there is negligence on
one side but not on the
other.[4]
Barry seems to be
criticizing the notion of distributing according to desert from a socialist or
communitarian perspective, viewing
desert as an atomistic holdover from a
Capitalist perspective.
Rawls's theory of “justice as
fairness”, perhaps the most influential in its rejection of desert as a
basis of distribution,
attacks desert as a fundamentally incoherent notion:
It seems to be one of the fixed points of our considered judgments that
no one deserves his place in the distribution of native endowments,
any more
than one deserves one's initial starting place in society. The assertion that a
man deserves the superior character that
enables him to make the effort to
cultivate his abilities is equally problematic; for his character depends in
large part upon fortunate
family and social circumstances for which he can claim
no credit.[4]
Even the
willingness to make an effort, to try, and so to be deserving in the
ordinary sense is itself dependent in practice upon happy family and social
circumstances.[5]
Our talents and
abilities are products of the Natural Lottery (heredity, family, and
environment). We don't deserve our talents, including
the talent to be moral or
make an effort to learn and work. So, the argument proceeds, we don't deserve
what our talents produce.
Moral and intellectual excellence and superior
ability to perform important tasks are from a moral point of view arbitrary and
must
not be used as bases for differential distribution of primary goods,
including economic goods, social status, or respect. The notion
of natural or
pre-institutional desert evaporates. Justice as the tendency towards
equal distribution of primary goods replaces the classical notion of justice as
giving each person his or her due (suum cuique
tribuere).[6] The criterion of desert
is replaced largely by that of rights and entitlements, the language of the Law
Court. As Dworkin puts it,
rights are trump cards which beat everything
else. Even though philosophers like Rawls and Dworkin would disassociate
themselves from some of the
aberrations of rights rhetoric, their work has lent
support to the proliferation of entitlement talk so that in our time whenever
an
interest group desires special recognition it claims a right: civil rights,
women's rights, prisoners' rights, children's rights,
gay rights, the rights of
the handicapped, animal rights, the rights of nature, the rights to paid
holidays, to medical coverage.
Some parents have even claimed the right to
retire from parenting small
children.[6] Rights, for the
contemporary liberal, such as Rawls, are conventional institutional
constructions or programs which flow out of the
principles chosen by rational
agents in the original position.[6]
What is remarkable about Rawls’ program is that for the first time in the
history of philosophy the Sophist’s idea of
relative convention (nomos)
triumphs over natural law (physis) and has become the dominant political
philosophy of our age. The genius
of Rawls is to make Protagoras and Callicles
and Glaucon respectable over Socrates, Plato, and Aristotle - no mean feat!
Other political
philosophers, belonging to the Post-Rawlsian Liberalism, have
similar strategies, all agreeing that rights must replace natural
desert,
yielding institutionally created desert. The Liberal ideal, which has largely
replaced merit in the minds of many persons,
holds that not the individual but
the society at large owns individual talents. Essentially, preinstitutional
desert is an incoherent
concept.[6]
Egalitarians,
such as Kai Nielsen, Tom Nagel and Robert Goodin have replaced the notion of
desert with that of need, reflecting Marx’s
dictum, “From each
according to his ability, to each according to his need.” Tom Nagel offers
the illustration of the
family which has the choice of moving to the city where
the handicapped child will receive important therapy or to a suburban
neighborhood
where the eldest son and the rest of the family are likely to
prosper, but where the handicapped child will not get the treatment
he needs.
Nagel argues that the morally right act is to move to the city for the sake of
the handicapped child, thus promoting equality
rather than overall flourishing.
Robert Goodin illustrates the principle of overriding desert for need. Suppose
two men have been
in an automobile accident and have the same serious injury,
but one is guilty of gross recklessness which caused the accident, while
the
other is an innocent victim. Who should get priority treatment in the emergency
room? Goodin asserts that even if everyone has
clear knowledge of the facts, it
would be morally outrageous to give preferential treatment to the innocent
victim. The right to
equal treatment and to having one’s needs met trumps
desert.[6]
While some
Affirmative Action programs are based on compensatory desert, most are to a
large extent based on one of these three anti-meritocratic
moves - either on the
denial of the coherence of merit altogether (replacing the idea with a more
therapeutic ideal of enabling everyone
to be autonomous), the justified
overriding of merit because of considerations of need, compensation, or utility,
or the denial that
we can really know who deserves what.
The main rival to justice as desert is egalitarianism. Egalitarians
typically promote the coercive redistribution of goods from the
well off to the
worse off. They hold to what Derek Parfit has labeled the Priority of the
Worse Off principle: whenever feasible, transfer goods from the better off
to the worse off, even if it reduces overall
utility.[6] Many egalitarians view
equality as an intrinsic good, good for its own sake as well as an instrumental
good. Egalitarians typically
base their policies on the thesis that human beings
are all of equal and positive moral worth. We have equal rights to life
prospects,
resources, happiness or welfare. Elsewhere I have argued that no
secular argument for equal human worth
succeeds.[6] The one way we have
equal rights involves the right of equal protection of the law, including the
right not to be exploited. Given
any criterion for such worth, be it reason,
freedom, conscientiousness, or the ability to deliberate, people have
differential amounts
of this quality. I have also argued that attempts to work
out threshold states is arbitrary and does not give us anything like the
normative force that egalitarians need to justify their policies. Where a case
for human equality can be made, viz, within rich metaphysical
traditions such as
religions, equality is only seen as a starting point, not an overriding
principle by which to govern society.
The best moral arguments reduce to equal
opportunity, but these are off-set by considerations of freedom. The free
enterprise system of economics with its practice of free exchange based on
supply and demand and the family, with its practice of giving special
benefits to its children (eg, I don’t aim at causing it to be the case
that my neighbor’s
children are as capable as mine. I educate and train
mine to be superior), are both inegalitarian institutions. They are not
desert-based
either, but are based on the values of freedom and welfare
(allowing these institutions to flourish promotes overall utility). In
this
paper I will not deal with the importance of freedom or assume that a case for
egalitarianism is doomed. Quite the reverse.
I will assume that a prima facie
case can be made for some redistribution of resources from the well-off to the
worse off. What
I will argue in these cases is that desert must also
enter into redistribution schemes and that what we object to in inequalities is
not their inequality but their undeservingness.
In general, desert trumps
equality.
Before I go on, I must define my concepts and distinguish desert
from merit. Although both are appraisal terms and ordinary language uses
them in multifaceted and overlapping ways, sometimes, even as synonyms,
they
have central meanings.[7] Merit is a
broader concept, the genus of which desert is the species. Merit, corresponding
to the Greek word axia, is any feature or quality that is the basis for
distributing positive (or in the case of demerit, negative) attribution, such as
praise, rewards, prizes (or penalties and punishments) and
grades.[8] We find the concept in
Homer’s writings, as argued for by A W H Adkins:
The Homeric king
does not gain his position on the grounds of strength and fighting ability. He
belongs to a royal house, and inherits
wealth, derived from the favored
treatment given to his ancestors, which provides full armor, a chariot, and
leisure. Thus equipped,
he and his fellow agathoi [nobles], who are similarly
endowed, form the most efficient force for attack and defence which Homeric
society possesses. Should they be successful, their followers have every reason
to commend them as agathoi and their way of life
as arete [virtuous]; should
they fail, their followers have every reason to regard this failure, voluntary
or not, as aischron [shameful].
A failure...in the Homeric world must result
either in slavery or annihilation. Success is so imperative that only results
have any
value; intentions are
unimportant.[9]
It signifies
an appraising attitude (positive or negative), like gratitude, praise, approval
and admiration.[10] What Rawls says
about desert really applies to non-deserved merit, which we do not earn, but is
a gift of the Natural Lottery.
Non-deserved merit can be features which the
Natural Lottery have distributed, such as your basic intelligence, personality
type,
skin color, good looks, smiling eyes, good upbringing, and genetic
endowments. The most beautiful dog in the canine beauty contest
merits the first
prize, the tallest person in the city merits the prize for being the tallest
person in the city, and a black actor
merits the part of playing Othello over
equally good white actors, because race is a relevant characteristic for that
part, even
though he did nothing to deserve his blackness. In these situations
beauty, tallness and blackness become meritorious traits, whereas
ugliness,
shortness and whiteness are demerits. The formula for merit is:
where S is the subject, M is the thing which S ought to receive, and Q is
the merit base, the good (or bad) quality possessed by S.
Desert, on the
other hand, is typically or paradigmatically connected with action, since it
rests on what we voluntarily do or produce.
It is typically connected with
intention or effort. As George Sher writes:
Of all the bases of desert,
perhaps the most familiar and compelling is diligent, sustained effort. Whatever
else we think, most of
us agree that persons deserve things for sheer hard work.
We believe that conscientious students deserve to get good grades, that
athletes
who practice regularly deserve to do well, and that businessmen who work long
hours deserve to make money. Moreover, we
warm to the success of immigrants and
underprivileged who have overcome obstacles of displacement and poverty. Such
persons, we feel,
richly deserve any success they may
obtain.[11]
I deserve to win
the race because I have trained harder than anyone else. You deserve praise for
your kind act because it was a product
of a morally good will. The man or woman
who works hard at a socially useful job deserves more in terms of salary than
the person
who loafs or works half-heartedly. The Good Samaritan deserved
gratitude and benefit for helping the helpless, wounded Jew, which
deserved to
be reciprocated preinstitutionally, but he would have deserved praise even if
his efforts failed. On the other hand,
your native intelligence, reflected in a
high IQ, may be merited but not deserved, since you were born with it and
didn’t do
anything to deserve it; a prize for being the youngest person in
the room is merited but not deserved, since there's nothing the
person did to
deserve it; and receiving an A on a test over material you effortlessly
mastered, was something you merited more than
you deserved. Similarly, a black
actor's claim on the part of playing Othello has merit although the actor did
nothing to deserve
his skin color.
A Taxonomy of Appraisal Terms
Desert ( Effort-Will- Responsibility) Merit (Any positive
or negative
quality)
Moral Non-Moral Rewards Prizes Compensation
Kantian
Good Will Effort made towards Grades
Altruism a worthy
goal Contribution
Both positive desert and positive merit imply the
fittingness of positive rewards or praise, but one has more to do with the
internal
motivation, control and intention and the other with the external
success.
Some philosophers doubt that the merit/desert distinction is
very strong.[12] But consider:
Suppose in times gone by a race of humans were born with wings and light bodies,
so they could fly. Such people had
great social utility, for they could fly over
mountains or enemy lines with important goods or information. When there was
need of
a secure messenger, they would typically get picked over more
earth-bound mortals. The flyers obtained higher salaries than walkers
and
enjoyed great fame and social prestige - much like star athletes do
today.
The flyers didn’t deserve their wings, but they certainly
merited the employment and honors they were given. They were the best
candidates
for flying to distant places - and reaching them safely and securely. Were there
no need of distant communication, their
wings would have had only aesthetic
value. The need for a means of communicating over long distances created the
institutional value
of rewarding winged people.
Contrast this with the
person who does everything he can to live a virtuous life, to practice
benevolence and contribute to the social
good. This person deserves praise and
honour in a way the flyer may not (let us suppose that the flyer flies almost
effortlessly).
One merits goods, whereas the second person deserves them.
Although I cannot develop the thought here, one must be a metaphysical
libertarian or (perhaps) a compatibilist to hold to rewarding desert, but even a
determinist can honor merit - indeed, he may be
determined to do so.
Joel
Feinberg calls such meritorious qualities as intelligence, native athletic
ability, good upbringing “the bases of desert,”
meaning that while
we may not deserve these traits, they can generate desert claims. That is, while
you may not deserve your superior
intelligence or tendency to work hard, you do
deserve the high grade on your essay which is a product of your intelligence and
effort.
The formula for desert is:
where S is a subject, D is the property, thing, or treatment deserved,
and A is the act, the desert base for
D.[13]
I suggest that we can
further divide desert into moral and nonmoral desert. Moral desert corresponds
to the Kantian good will, the
intention to do one’s duty or go beyond what
duty requires. The moral person deserves happiness in proportion to the degree
of his good will. Nonmoral desert has to do with effort in morally acceptable
activities. We admire Lance Fleming for overcoming
his cancer in winning the1999
Tour de France. In some sense, he deserved to win. Of two people of
equal ability, the one who trains more diligently and exerts himself more
(non-morally)
deserves to win in the competition, even if by bad luck (eg, he
accidentally trips), the less deserving actually wins. I qualify
nonmoral desert
with the phrase “morally acceptable activities,” since we would not
say that the thief who trains hard
to burgle deserves to be successful or the
maniac who becomes skilled in assassination deserves to succeed in assassinating
the President.[14] Wittgenstein
gives an example in another connection which nicely illustrates the difference.
Suppose, while playing a game of tennis,
someone reprimands me, “You ought
to work harder to play a better game.” I might reply, “I don’t
want to
- it’s not that important,” without receiving serious
censure. But if, on failing to do my moral duty, someone said to
me, “You
ought to work harder to be a conscientious person,” and I replied,
“I don’t want to - it’s
not that important,” I would
rightly deserve
censure.[15]
I said that
desert was typically or paradigmatically connected with what we do
or intend to do, but a secondary negative use concerns what happens to
us. We say that the innocent infant or child didn't deserve to get cancer and
that the woman killed
by a stray bullet deserved to have been spared. In these
cases we posit a base line of innocence and reason that the innocent deserves
an
opportunity to develop, which in this case is thwarted by natural catastrophe.
The infant is innocent tout court and the woman is innocent with regard
to the behavior of the bullet. Fred Feldman mentions the case of the figure
skater who is intentionally
maimed by a thug, hired by her opponent, so that her
opponent can win the competition. Surely, the injured skater deserves
compensation,
though she is not responsible for what she deserves. I would say
that she would deserve (or merit) some compensation even if it were
a disease
that caused her to be unable to compete. Do the blind, the deaf, and the
physically and mentally handicapped merit or deserve
compensation for their
handicaps? If so, why? In some sense, since they are innocent of ill-doing that
might require punishment,
they do merit special compensation to bring them up to
a base-line of well-being, but, beyond certain minimal benefits, society may
not
have the resources to give them what would bring them up to the average. Perhaps
our notion of a God and a heaven has to do with
our sense that nature is unfair
and our sense that the discrepancy between what we deserve and what we actually
get in his life should
be rectified. God is seen as the great judge and
Compensator, who will bring it about that the virtuous and vicious get exactly
what
they deserve. All will be made right in a future existence. The notion of
karma, which holds that there is a casual relationship
between your actions in
this life and your character and circumstances in the next, plays a similar
role.
Let us designate such instances compensatory desert, or
compensatory merit, signifying that people should ideally be compensated
for evils which were in no way their fault, evils which were either brute bad
luck or brought on by other agents' behavior.
The formula for
compensatory desert is:
where C is the compensation due to S on account of some harm ( X) that
has happened, is happening or will likely happen to
S.[16] If I drive my pick-up truck
over your left arm, I should compensate you for the damage. As far as the logic
of compensation is concerned,
there is a difference between an agent harming S
and nature harming him. In cases where the person is harmed by nature, society
may
not owe him anything. On the other hand, the notion of providing everyone in
society with the possibility of a minimally good life
may generate an
institutional right to be compensated for nature’s harm. In this case
society treats nature as a quasi-agent
and seeks to off-set its
“actions.”
The question may be raised, is compensatory
desert really a type of desert or just another kind of merit? Perhaps it could
be either.
If we think of the person as a moral agent who is doing his best to
live a moral life, then the harm is bringing his welfare quotient
down from
where it should be. In this case he deserves not to be so harmed. However, if
the person is a child, innocent, but not
yet a moral agent, it is bringing him
under what innocence merits. Similarly, animals do not merit being slaughtered
so that we can
enjoy the taste of meat. On other hand, if the person is immoral
and contracts a dread disease, he may be getting “poetic justice,”
harm or punishment which he really deserves but which is not being administered
via a human authorized agency.
Types of merit include grades,
contribution or reward, and prizes. We give students grades on the basis of
merit, on how well they
have performed on tests, essays and class discussion,
not on how hard they have tried. The student who tries hardest may actually
fail
the course. We reward people for their productivity and their contribution to
society whether or not they deserve their talents.
General MacArthur merits our
respect even if he did nothing to deserve his fantastic military skill. The
skilled surgeon who effortlessly
performs a life saving operation merits our
gratitude and some reward. The insane homocidal maniac merits being removed from
society,
even though he is not responsible for his acts. Marx, referring to St.
Paul in the New Testament, said that in pre-utopian society,
he who does not
work, should not eat, food being a form of just desert. He went on to say that
the rule should be “from each
according to his ability, to each according
to his contribution,” signifying productivity as the merit-based wage
differential.
When I was in Capitol Reef National Park last summer, I heard the
following story about Dewey Gifford (1901-1996?), a cattleman
who worked in the
area for over 60 years. One day Dewey asked the cattle owner for a horse in
order to make his work easier. The
owner took the request and did a cost-benefit
assessment. He came back to Dewey with the proposal that he could provide a
horse but
that it could get only a bare minimum of food, so it would be
constantly hungry. Dewey turned down the offer, saying “If my
horse does
an honest day’s work, he deserves an honest day’s pay.”
Substitute “merit” for “desert”
and my point is made -
even a horse who works out of coercion merits a reward or proper remuneration
for his contribution or services.
Desert, then, is closely connected to
effort and intention, whereas merit signifies positive qualities that call forth
positive response.
While God, knowing our inner motivations, rewards purely on
the basis of desert, we fallible beings, being far less certain as to
how to
measure effort and intention, tend to reward merit, the actual contribution or
positive results produced. You and I may both
get the same merit pay
bonus for producing 100 more widgets than the average worker, but I may deserve
them more than you do, since your superior native
ability enabled you to produce
them effortlessly whereas I had to strain every ounce of strength to get the
same result.
An interesting example of the conflict between desert and
merit occurred during the Olympic Games in Atlanta, Georgia (August 3, 1996).
Carl Lewis, one of the leading United States athletes, having won his ninth gold
medal in the long jump, requested that he be added
to the United States men's
400 metre relay team. He argued that, because of his superior ability, he
merited it. Many athletes and
fans agreed with him and requested that the coach
substitute Lewis for one of the other runners. Some of the other spectators and
runners, including those who feared being displaced by Lewis, were outraged at
his audacity. They argued that Lewis shouldn't be
put on the team because he
didn't deserve to be on it in spite of his great talent, for he turned down the
opportunity to enter the
try-outs for the team. Those who made the team played
by the rules, won their places in fair competition, and could legitimately
expect to run. Here is a case where merit and desert seem to conflict, and where
desert, it seems to me, wins out over merit. It
wins out because we have a
legitimate institution (the process of competing for a position on a team) in
which those who play by
the rules deserve to be rewarded with the positions
which they fairly won.[17]
Finally, we may distinguish desert and merit from entitlement,
positive rights. Even though I am a lazy bum who is undeserving of any wealth, I
am entitled to the inheritance that my rich uncle
bequeaths to me. For Rawls all
desert claims reduce to entitlements and justified entitlements are those
obtaining in a society governed
by the principles of justice-as-fairness.
The awarding of prizes illustrates an institution where merit, desert
and entitlement intermingle. We bestow prizes on the basis
of how well a person
performs in a socially constructed competitive activity. Only one team wins the
National Football Championship
or The World Series and thereby is entitled to
the prize. All the others are losers, even though they may be more deserving
(their
total effort was greater) or more meritorious (their combined talent was
greater). Only the runner who crosses the finish line first
merits first prize
even though the loser may have worked harder, and so be more deserving. Feinberg
distinguishes between desert
worthiness and desert qualification. The victor
meets the qualification for the prize, even though another competitor is
actually
better, more worthy.
In a contest of skill in which the winner
can be determined by exact measurement, such as a high-jumping contest, there
can be no
question of who deserves the prize (qualification). It is deserved by
the contestant who has demonstrably satisfied the conditions
of victory, in this
case by jumping in the prescribed way the highest distance off the ground. There
might still be controversy,
however, over who deserved to win. To be sure, the
victor deserved the prize, but who deserved to be the victor? Perhaps the man
who truly deserved to win did not in fact win because he pulled up lame, or tore
his shoe, or suffered some other unforeseeable stroke
of bad luck. In a contest
of skill the man who deserves to win is the man who is most skilled, but because
of luck he is not in every
case the man who does
win.[18]
I think it would be
better to say that the winner may not be the most meritorious, judged by the
criterion of actual ability, but
that he, nevertheless, is entitled to the
prize. For contests, whether they be athletic events or competitive exams for
fellowships,
are socially constructed and intended to measure merit, but capable
only of picking out the person who actually excels on the given
occasion. If I
excel on the competitive exam, I merit the reward, even if I am not as talented
as another competitor. Perhaps we
should say that fellowship exams and contests
are generally meant to measure and give prizes for merit, but the prizes they
offer
are actually entitlements, socially devised rights.
There are other
normative concepts (eg, need) which need to be assessed in relation to desert
and its relatives. All of these concepts
entail presumptive normative force. To
paraphrase W D Ross, whom I follow in much of the spirit of my analysis, desert
or merit claims
create prima facie obligations on others to enable the
subject to receive the things deserved or merited or to which the subject is
entitled.
Although most of what I shall say in this essay applies broadly
to both desert and merit, which greatly overlap, I will primarily
be concerned
with central uses of merit, those having to do with moral excellence and
excellence connected with performing a task
or job. My thesis, which may be
called “Justice as Merit” (though “Justice as Desert”
sets it in the classic
tradition), is that such considerations provide strong
prima facie grounds for distributing benefits and burdens, including coveted
positions and occupations. In other words, I offer in broad outline a defense
of meritocracy. In section II, I will outline my main
arguments for the
meritocractic thesis that desert claims constitute a strong prima facie ground
for the distribution of appropriate
goods. In section III, I will argue that
desert trumps equality.
Why should we value desert and merit? Why should we reward and punish
people according to their desert and merit? Why not reward them
according to
their needs? or according to a utilitarian calculus? or according to their
entitlements, which flow from institutional
arrangements and expectations? Let
me first outline a deontological justification of desert/merit, and then offer a
utilitarian
justification and explanation of justice as desert.
It is interesting to observe how deeply the notion of justice as desert
or merit is embedded in human history. It seems a pre-reflective,
basic idea of
primordial or Ur-justice. One finds it grounded in every known culture and
religion. The ancient Greek poet Simonides
defined justice as “rendering
each person his due”.[19]
Ancient Roman law, as indicated by the quotation from the Roman jurist Ulpian at
the beginning of this paper, similarly defined
justice as giving people what
they merited, their due. The eminent sociologist George Caspar Homans observed,
“Men are alike
in holding the notion of proportionality between investment
and profit that lies at the heart of distributive justice” and
“Fair
exchange, or distributive justice in the relations among men, is realized when
the profit, or reward less cost, of each
man is directly proportional to his
investment”.[20]
The
idea is explicit in the Hindu and Buddhist idea of karma, where in succeeding
reincarnations each person is rewarded in exact
proportion to his or her desert.
In Islam the Koran is filled with similar passages. One of the least known is
the dictum, “A
ruler who appoints any man to an office, when there is in
his dominion another man better qualified for it, sins against God and
against
the State.”
In the Judeo-Christian Scriptures we read that a
lawlike principle rules the universe so that “whatsoever a person sews,
that
shall he also reap”.[21]
The message of the Hebrew Bible is that the mills of God grind slowly but
surely. The righteous will prosper and the wicked will
be punished in proportion
to their wickedness. We read that punishment should consist in equivalent
actions, “life for life,
eye for eye, tooth for tooth, hand for hand, foot
for foot, burn for burn, wound for wound, stripe for stripe” (Exodus
21:23).
In the Book of Psalms we read that the righteous person “is like
a tree planted by streams of water that yields its fruit
in its season, and its
leaf does not wither. In all that he does, he prospers.” The wicked are
doomed, “like chaff which
the wind drives away” (Psalms 1).
In the New Testament we read that “he who sews sparingly will also
reap sparingly, and he who sews bountifully will also reap
bountifully”
(II Cor. 9:6).[22]
Further, in
the Jewish/Christian tradition this meritocratic principle is reflected in the
doctrine of heaven and hell (and purgatory).
The good will be rewarded according
to their good works and the evil will be punished in hell - which they have
chosen by their actions.
Leibniz characterized this practice as an expressison
of the principle of the fitness of things:
Thus it is that the
pains of the damned continue, even when they no longer serve to turn them away
from evil, and that likewise the
rewards of the blessed continue, even when they
no longer serve for strengthening them in good. One may say nevertheless that
the
damned ever bring upon themselves new pains through new sins, and that the
blessed ever bring upon themselves new joys by new progress
in goodness: for
both are founded on the principle of the fitness of things, which has
seen to it that affairs were so ordered that the evil action must bring upon
itself chastisement.[23]
It
might seem that eternal hell is excessive punishment for human evil and eternal
bliss excessive reward, but the basic idea of moral
fittingness seems to make
sense.
We observe this fittingness in the Lockean notion of property
rights. In fact, Desert and Natural Rights, as opposed to institutional
rights,
are closely related to each other. Desert is typically based on what we have
done (or what has been done to us), whereas
basic or natural rights signify
claims we make. I have a natural right to life (or not to be killed), but we
would not say that I
deserve not to be killed (though we might say I didn't
deserve to be killed when someone murders me or the State executes me by
mistake).
The Lockean notion of property rights seems to be closer to a desert
claim than a standard entitlement. I have a natural right to
my own body (which
I own but do not deserve - nor do I not deserve it), but I extend my property
right to natural objects by mixing
my labour with it. By tilling the soil,
planting crops, cutting down a tree and making a chair, I come to own the land,
the fallen
tree, the chair. I have added value to the external object, so it is
fitting that I be allowed by others to use it as I see fit,
ie, to own it. This
process resembles a desert claim more than a typical natural right
claim.
Karl Marx seems to hold a theory of desert based on labour derived
from Locke's theory via Adam Smith. His Labour Theory of Value
holds that the
carpenter who creates the chair, investing ten hours of labour into the
process, creates ten units of value, and so
deserves all ten units of
remuneration. If the carpenter works for an entrepreneur, the entrepreneur can
deduct for the tools, investment
and minimal profit, but must not steal
what is the carpenter's lot. The carpenter deserves the value of his product
minus the overhead. Marx, of course, believed that the
means of production ought
to be made into common property, but, at least in his Critique of the Gotha
Program, he attacks Lasallian socialists’ uncritical notion of
ownership in which “the instruments of labour are common property
and the
proceeds of labour belong undiminished with equal right to all members of
society.” Marx rhetorically asks, “To
those who do not work as well?
What remains then of the undiminished proceeds of labour?” Only to those
members of society
who work? What remains then of the ‘equal right’?
Of all members of
society?”[24] The first phase
of the communist society will adhere to the labour theory of value. The worker
will receive in accordance with his
production, “with an equal performance
of labour, and hence an equal share in the social consumption fund, one will in
fact
receive more than another, one will be richer than another, and so
on.” Only in the “higher phase of communist society,
after the
enslaving subordination of the individual to the division, and therewith also
the antithesis between metal and physical
labour, has vanished,” in the
more abundant society, will society “inscribe on its banners: from each
according to his
ability, to each according to his need.” Until that time
the formula for justice must be from each according to his ability,
to each
according to his contribution.
So Locke and Marx both hold to a theory
of natural property rights that is desert based. Marx is more a meritocrat than
Rawls, Nielsen
or most contemporary liberals.
As these citations from the
history of religion and philosophy indicate, desert has normative force,
connected to obligation and
duties. If I promise to pay you back my debt, I
ought to do so and you deserve that I pay you back. We say that rational, but
not
hopelessly senile, people “deserve to be told the truth” about
their terminal illness, the guilty deserve to be punished
according to the
severity of their crime, hard work deserves reward, as does social contribution
- especially undergoing hardship
or danger.
I think we get another hint
of this fittingness or symmetry in the practice of gratitude. We normally
and spontaneously feel grateful for services rendered. Someone treats us to
dinner, gives us a present, teaches us a skill, rescues us from a potential
disaster or simply gives us directions. We normally feel
spontaneous gratitude
to our benefactor. We want to reciprocate and benefit the bestower of blessing.
On the other hand, if someone
intentionally and cruelly hurts us, deceives us,
betrays our trust, we automatically feel resentment. We want to reciprocate and
harm that person. Henry Sidgwick argued that these basic emotions were in fact
the grounds for our notion of desert: punishment was
resentment universalized
and rewards - a sort of positive punishment - gratitude
universalized.[25] Whether such a
reduction of desert to resentment and gratitude completely explains our notion
of desert may be questioned, but I
for one do feel a universalized sense of
resentful outrage when I hear of criminals raping and murdering, and I feel
something analogous
to gratitude - call it “vicarious gratitude” -
when I hear of works of charity, such as those of Mother Teresa. These
reactive
feelings may well be the natural origins of our sense of justice. These reactive
sentiments have a normative core: those
whom I resent “ought” to
suffer and those towards whom I feel gratitude “ought” to prosper.
Of course, my
sentiments-judgments are not infallible and may not even be valid.
But if we can link them with the nature of morality itself, with
promoting or
detracting from human flourishing, we can moralize the reactive attitudes.
W D Ross offers a thought experiment to support this position. After
identifying two intrinsically good things (1) pleasure and (2)
virtue, Ross asks
us to consider a third:
If we compare two imaginary states of the
universe, alike in the total amounts of virtue and vice and of pleasure and pain
present
in the two, but in one of which the virtuous were all happy and the
vicious miserable, while in the other the virtuous were miserable
and the
vicious happy, very few people would hesitate to say that the first was a much
better state of the universe than the second.
It would seem then that, besides
virtue and pleasure, we must recognize, as a third independent good, the
apportionment of pleasure
and pain to the virtuous and the vicious respectively.
And it is on the recognition of this as a separate good that the recognition
of
the duty of justice, in distinction from fidelity to promise on the one hand and
from beneficence on the other,
rests.[26]
Surely Ross is
correct. It is intuitively obvious that the appropriate distribution of
happiness and unhappiness should be according
to virtue and vice. This sort of
thought experiment seems to be what underlies the universal commitment to
meritocracy mentioned
above. It seems to be exactly the intuition that motivated
Kant's principle of equality, a sort of symmetry between input and output
in any
endeavor. This finds expression in the Groundwork for the Metaphysics of
Morals where Kant writes that conscientiousness or the good will, being the
single desert base, is the only moral basis for happiness:
An impartial
spectator can never feel approval in contemplating the uninterrupted prosperity
of a being graced by no touch of a pure
and good will, and that consequently a
good will seems to constitute the indispensable condition of our very worthiness
to be happy.[27]
In Part
III, I will outline what a system of Justice as Desert would come to. But first,
let us note the utilitarian justification
for justice as desert.
The answer to these puzzling questions leads us to the deepest regions of
human experience. No doubt one can give a partial explanation
of our belief in
the propriety of rewarding and punishing people according to the nature of their
acts by utilitarian considerations.
Rewarding good works encourages further good
works and punishment deters bad actions. By recognizing and rewarding merit, we
promote
efficiency and welfare. We want the very best surgeons to perform vital
surgery, the very best judges to decide hard legal cases,
the very best business
persons to lead corporations in which we have investments, the very best
engineers to design our bridges,
nuclear power plants, airplanes and
automobiles. Even the most ardent advocate of affirmative action on university
campuses refrains
from advocating that positions on the football, basketball or
track team be based on any other criterion than merit. Where utilitarian
grounds
are strong, merit-based operations generally go unquestioned. Generally, a
society that has a commitment to rewarding those
who contribute to its
well-being and punishing those who purposefully undermine it will survive and
prosper better than a society
that lacks these practices. But, of course, as we
noted above in discussing Nagel, if we are driven simply by utilitarian
considerations,
we may have reason to override
merit.[28]
We can give an
evolutionary account of the need for giving people what they deserve in terms of
group selection and survival. Millions
of years ago a pattern of behaviour
selecting for reciprocity, which is the underlying basis of desert, would have
been chosen. Reciprocity
is the principle that stipulates that you should return
like behavior for like, a “tit-for-tat-rule.” It creates an
expectation
that whatever I do unto others will be done to me. Among our
Pleistocene ancestors behavior that was socially useful would have
been
positively reinforced, and behavior that was socially harmful, negatively
reinforced - ie, social sanctions would have been
used against it. Groups that
promoted reciprocity would be more adaptive than groups that didn’t. For
example, suppose that
in group A, members repay one good deed with another. When
member A1 helps member A2 gather food, member A2 will at some future time
share
food or groom member A1. Benefactors will have the confidence that their good
deeds will be rewarded. In group B no such reciprocity
functions. Either
benefits are distributed randomly, equally or by virtue of force and fraud. As
such, members have no incentive
to help others, since behaviour is not socially
reinforced. There is no causal relationship between actions and pay-offs. If I
will
reap as much good as you, whether I work or not, where is the incentive to
work? All things being equal, Group A will have a better
chance at surviving and
flourishing than group B. Group A members will be more likely to defend each
other from attack and to cooperate
in endeavors that promote individual and
social well being.
Ethologists have documented reciprocity in apes,
showing, in particular that our nearest cousins express gratitude and
reciprocate.
If chimp 1 helps chimp 2 retrieve a bucket of food, chimp 2 is
likely to share it with chimp 1 or promote some other benefit for
chimp 1 (eg
grooming).[29] The formula goes like
this:
If A helps B at time t, B is expected (ought to) to help A at some subsequent time.
In their ground -breaking work Unto Others: The Evolution and
Psychology of Unselfish Behavior, Elliott Sober and David Sloan Wilson
illustrate this point about desert as the socially beneficial distribution of
rewards and punishments.
They take the case of the hunter, who spends an
enormous time hunting at great risk to himself, but distributes food to all of
the
group, hunters and non-hunters alike. This seemingly altruistic, group
enhancing behavior, it turns out is rewarded by the group.
“It turns out
that women think that good hunters are sexy and have more children with them,
both in and out of marriage. Good
hunters also enjoy a high status among men,
which leads to additional benefits. Finally, individuals do not share meat the
way Mr
Rogers and Barney and Dinosaur would, out of the goodness of their heart.
Refusing to share is a serious breach of etiquette that
provokes punishment. In
this way sharing merges with taking”. These new discoveries make you feel
better, because the apparently
altruistic behavior of sharing meat that would
have been difficult to explain now seems to fit comfortably within the framework
of
individual selection theory.[30]
So, while hunting might, at first sight, appear an example of pure
altruism, the rule of reciprocity comes into play, rewarding the
hunter for his
sacrifice and contribution to the group. Sober and Wilson call activities like
hunting, which increase the relative
fitness of the hunter, primary behavior,
and the rewards and punishment that others confer on the hunters, secondary
behavior. “By
itself , the primary behavior increases the fitness of the
group and decreases the relative fitness of the hunters within the group.
But
the secondary behaviors off-set the sacrifice and promote altruistic behavior,
so that they may be called the amplification
of altruism.”
This
primitive notion of reciprocity seems to be necessary in a world like ours. One
good deed deserves another (and mutatis mutandis
with bad deeds). Reciprocity
is the basis of desert - good deeds should be rewarded and bad deeds punished.
We are grateful for
favours rendered and, thereby have an impulse to return the
favour; we resent harmful deeds and seek to pay the culprit back in
kind
(“an eye for an eye, a tooth for a tooth, a life for a life”). Put
summarily, positive desert is gratitude universalized
and punishment (negative
desert) is resentment over harmful deeds universalized.
This is similar
to Ross’s interpretation of the correlation of rights and duties:
A
right of A against B implies a duty of B to A. What is meant is that A’s
having a right to have a certain act done to him
by B, which act may be either a
similar act (as where the right of having the truth told to one implies the duty
to tell the truth)
or a different sort of act (as where he right of obedience
implies the duty of governing
well).[31]
That is, rights
and duties are reciprocal. Your having fulfilled your duty to me, creates a
right over against me (or a duty in me)
to do an act of similar quality to you.
Ross includes our duty to reciprocate a prima facie duty, which has presumptive
force, but
can be overridden in special circumstances by other moral
duties.
Justice is done when a person gets what he or she deserves. Moral desert
is based on one’s moral character, the quality of one’s
dedication
to the moral point of view. This may be likened to the Kantian good will,
one’s moral conscientiousness. Kant asserted
that a person should be happy
to the degree of his or her moral goodness. We might represent this by a Feldman
Graph.[32] Let there be two axes: a
Desert Axis representing the level of one’s moral integrity (+), as well
as one’s immorality
(-), and a Well-Being or Happiness Axis representing
various levels happiness (+) and unhappiness (-). Let us assign numbers in
the
standard way, the higher numbers representing the better outcomes and the lower
numbers representing the lower outcomes. We then
posit the following
principle:
P1 Justice obtains when the morally good are happy in
proportion to their goodness and when the morally bad are unhappy in proportion
their immorality.
Suppose Mother Teresa has a high moral desert score of
+10, and it turns out that her well-being is very high, +10. We add the positive
numbers and get a combined Justice score of 20 (see the Northeast quadrant).
Suppose Ted Bundy, who is reported to have raped and
killed over 100 women, has
a moral desert score of -10. Suppose he is proportionately unhappy (-10).
Adding his combined scores
of -10 and -10 in the Southwest quadrant, we get his
justice score is +20. He is getting what he deserves and justice is satisfied.
But suppose Mother Teresa is not happy. Fortune has frowned upon her and left
her depressed and oppressed, so that her happiness
score is -10. The combination
of her desert score and her happiness score, is transformed to a negative
number -20 (Southeast quadrant).
Justice has not been done, but rather injustice
prevails. Her negative score transforms her positive worth to a negative justice
score. Or suppose that Ted Bundy, evil person that he is, somehow is
flourishing. He’s ecstatically happy, as happy as Mother
Teresa should be.
His happiness score is +10. Adding together his two scores, recognizing a
negative score transforms a positive
to a negative increment, we get -20
(Northwest quadrant). Injustice, once again, prevails.
We may add to
our principle of justice to account for a negative score transforming positive
score to a higher negative one in this
way:
P2 Negative desert transforms
positive well-being into a negative increment, resulting in a negative justice
score.
P3 Negative well-being transforms positive moral desert into a
negative increment, resulting in a negative justice score.
It is worse
from the point of view of justice that Mother Teresa is deeply unhappy than that
a less morally good person is unhappy
or that a bad person is happy. It is more
just that a very bad person is unhappy than that a good person or less bad
person is unhappy.
The justice graph reaches its ideal marks when the
amount of happiness is proportional to the desert score. If a good person is
happy,
but less happy than he or she deserves to be, justice is diminished. If a
bad person is happier than he or she deserves to be, justice
is diminished. But
if a good person is happier than he or she deserves to be, justice is also
diminished. Similarly, if a bad person
is unhappier than he or she deserves to
be, justice is diminished. But it is better for a good person to be happier than
he or she
deserves to be than for a bad person to be more unhappy than he or she
deserves to be. This intuition, if it is sound, is puzzling.
Does it mean that
there is a second order principle: P4 Justice is satisfied even when the good
prosper more than they deserve? Or
should we say that although these
over-proportionate results simply indicate that justice is not the only value,
grace and charity
are also values? If we can make the good happier than they
deserve, why not be generous. Perhaps this is an instance of grace or
charity.
But it seems worse to make the bad person worse-off than he deserves to
be than to make the good person better-off than he deserves
to be. Why is this?
I think it is because the principle, do no unnecessary harm, is more binding or
stronger than the principle,
increase happiness whenever possible. Yet it does
seem worse that the evil are not punished or made unhappy to the extent of their
viciousness than that the good get more than they deserve.
Sometimes we
hear, and I once believed this myself, that in a perfect universe everyone will
get what he or she deserves. But this
seems wrong. In a perfect universe the
good would get more than they deserve and the evil no less than they deserve.
Justice requires
proportionality of happiness to desert, but justice is not the
only value. Happiness is a good in itself and benevolence would likely
spread
itself out generously, making the good as happy as possible. It would also
endorse grace through repentance. That is, if
an evil person repents of his
evil, forgiveness is possible, so that though his total life desert score is
very low, grace mitigates
that score and raises his score significantly. For
example, suppose Ted Bundy, who had a desert score of -10 for a number of years,
repents and decides to live a virtuous life (with a desert score of +5). Even
though Bundy would be expected to provide restitution
for his past evil, it need
not be the exact amount of his evil. Grace would seem to cancel out some of the
debt. But to figure out
these numbers would require an omniscient being, a God.
For us, we may only take into rough account the tension between justice and
mercy.
This point leads to the fundamental objection to this entire
schema. We humans simply aren’t capable of ascertaining how morally
righteous people are, let alone how to determine when they are proportionately
happy. It is true that we can’t give these categories
cardinal numbers,
but we can roughly give them ordinal numbers. We can legitimately judge Mother
Teresa to be more moral than the
average morally good person, say my Aunt Jean
or Uncle Sam, and we can judge these to be better people than Adolf Hitler or
Ted
Bundy or the spiteful co-worker who maliciously harms his or her fellow
workers. And we can make rough determinations about when
people are finding
overall fulfilment in their work and lives. If my friend Jane is always
depressed and haunted with guilt (rational
or irrational), I can rate her
well-being score negatively and rank it lower than that of Jill, who manifests
a zest for life, an
ebullient confidence that has social success written all
over it. Rough though the scoring may be, we have a pretty good idea of
how our
acquaintances are doing, both morally and in terms of well-being. The more we
know the other person, the more confident we
can be about these judgments,
though perfect knowledge may elude us.
It seems, on reflection, that desert has significant normative force. The
morally good should prosper over the wicked, those who labour
should prosper
over the lazy, and whatsoever a man sews, that shall he reap. When we see
someone working 12 hours a day six or seven
days a week in order to build a
successful business or career, such as many immigrants in the US have done, our
sense of justice
is satisfied when we see him or her succeed, whereas we feel
that justice has not been done when someone who has failed to work hard
succeeds
over such industrious persons.
Consider a four person society consisting
of David, Saul, Isaac and Nabal. David and Saul are two highly talented men;
whereas Isaac
and Nabal are low talented men. David dedicates himself to
becoming a successful businessman (or scientist), sacrifices time and
money in
attaining his goals; whereas Saul spends his time surfing in the Mediterranean
Sea, taking harmful drugs when he is not
surfing, ending up a failure. Isaac,
although he has limited intelligence and education, works diligently, takes
whatever work he
can find and does a good job at whatever he does. Nabal, true
to his name - fool, has little talent, squanders his time and money,
and ends up
a failure. It seems obvious to most of us that David, because of his supreme
effort, eminently deserves to be more successful
than Saul, and Nabal and merits
more success than Isaac (though he may not deserve it) and that Isaac deserves
to prosper more than
Saul or Nabal. Suppose that Isaac, through no fault of his
own, is laid off from a job and applies for unemployment benefits. Saul
and
Nabal also apply. If there is only enough money for one person, we would say
that Isaac deserves to receive it over the other
two. We might even say that of
the three only Isaac deserves the benefits from people’s tax dollars. We
might choose to help
Saul and Nabal, but from a moral point of view that help
should be tied to their intention to reform. If no inclination to reform
is
manifest, no obligation rests on the shoulders of society to provide them with a
livelihood. Their demise is tantamount to a self-imposed
suicide. We judge Saul
more harshly than Nabal because he had more talents with which to improve his
lot. We think that David and
Isaac are equally deserving of success, though
David, due to his superior talents, merits success in a more complex or highly
developed
enterprise.
Effort, industry, commitment, the good will,
conscientiousness, these are the qualities that make up desert; talent, skill,
contribution,
native ability and intelligence, these are the qualities that make
up merit. Society values merit as the bottom line and the desired
result of
social endeavors, but it recognizes desert as that which casts moral value on
the individual, causing him to shine like
a jewel in his own light. At the
highly hierarchical United States Military Academy where I teach, cadets
sometimes complain about
what they perceive as the undeserved status and
authority of some of those chosen to be regimental commanders and company
officers.
When I ask them whether they object to the inequality of authority or
the undeserved inequality of authority and status, they invariably
answer, it is
the undeserved inequality.
We already considered Ross’s two worlds
with equal utility (A) in which the virtuous prosper and the vicious suffer in
close
equivalence to their virtue or vice and (B) in which the virtuous suffer
and the vicious prosper in equivalence to their virtue and
vice, seeing that A
was to be preferred to B. Let us now compare two worlds C and D which like A and
B are equal in utility. In C,
however, the virtuous prosper in accordance with
their virtue and the vicious suffer in a manner fitting their viciousness;
whereas
in D the good and bad alike are equally but mediocerly happy. I think we
would choose C over the egalitarian D.
Recently Dick Arneson has argued
for the intrinsic value of equality. He concedes that desert sometimes trumps
equality but holds
that equality has some intrinsic
value.[33] He asks us to consider
two worlds, which we may designate E and F, in which the utility is equal and
which have the same number of
virtuous and vicious people. In E the resources or
happiness are distributed randomly, whereas in F everyone has an equal amount,
regardless of virtue. Arneson thinks we would choose F, indicating that equality
has some intrinsic force. I don’t think that
it is clear that we would
choose the equal world. What I suspect may incline us to F is the epistemic
opacity in knowing how to
decide just who is virtuous and who is vicious. When
we are uncertain, we may incline towards equal distribution. Perhaps this is
what happens in our world. As Barry notes in our quotation at the beginning of
this paper, we cannot know for sure just who is virtuous
and to what extent
people deserve their holdings, so we incline to a rough egalitarianism.
Equality, then, becomes a default position.
I’m uncomfortable with
this conclusion. Firstly, I think we do have a sufficient grasp of the concepts
of desert and merit to
apply them to distribution schemes. In general we ought
to award coveted positions to the best qualified, wages to those who earn
for
them, rewards to those who achieve excellence in various institutional
endeavors, punishments to those who violate just laws
in proportion to their
gravity. Welfare schemes should distinguish between the unfortunate, who through
no fault of their own, lose
out in life, and the drones who choose not to do
socially useful work.
In this view of distribution, as Harry Frankfurt
has suggested, the craving for equality should be replaced by a notion of
sufficiency.[34] A society
like ours with ample but limited goods should aim at meetings everyone’s
basic needs, with providing a floor under
which no one is allowed to fall except
where he is clearly at fault. Frankfurt shows how this policy would take care
of Nagel’s
handicapped child without mandating equal welfare. The reason
the family with the handicapped child should move to the city where
he can
receive basic care is not to bring him up to a place where he has equal
life-prospects with his siblings, but where his basic
needs are met, so that he
can live a good life. The pure egalitarian would opt to bring him up to a place
with equal prospects with
his more able siblings, but that doesn’t seem
necessary, especially when it would require severe sacrifices on their part,
perhaps bringing everyone to a level below sufficiency. Frankfurt offers the
following thought experiment against thoroughgoing equality.
Suppose we have 10
people who each need five units of nourishment in order to survive. We only have
40 units. How should we distribute
these? The thoroughgoing egalitarian would
enjoin us to give four units to each even though that would result in the death
of all.
A utilitarian very likely would advise us to draw lots so that eight
people would receive the requisite five units and two people
die. The
meritocrat, agreeing that eight should live and two die, would advise us to use
a criterion of desert or merit (including
perhaps likelihood of future
contributions) in dividing up the resources.
My thesis is that desert matters and trumps equality. I think that,
generally, it also trumps utility. We reward people for their
work or
achievements in order to give them what they deserve or have merited. We punish
in order to give criminals what they deserve.
If, in the process, we can deter
crime as well, so much the better, but the underlying justification of rewards
and punishment is
desert (or merit). I have not argued that desert is a moral
absolute which can never be overridden by other considerations such as
utility.
In fact I believe that utility can sometimes override merit, but the presumption
is always on the side of merit/desert.
I have not sorted out the various
ways in which desert and merit compete with each other. That is a task for
another occasion. My
main goal has been to show that it is plausible to hold
that desert is a far more important moral concept than equality, that equality
is not a significant moral concept at all, and that it has only instrumental
value. Hence desert generally trumps
equality.[35]
[*] D Phil (Oxon), Professor of Philosophy,
US Military Academy, West
Point.
[1] J Rawls, A Theory of
Justice, Harvard University Press, 1971; R Dworkin, ‘Why Bakke Has No
Case’ The New York Review of Books, Nov 10 1977; T Nagel, Mortal
Questions, Cambridge University Press 1979; B Barry, Political
Argument, Routledge & Kegan Paul 1965; R Goodin states that it is
morally repugnant to make distinction between deserving and undeserving
people
when allocating scarce resources, ‘Negating Positive Desert Claims’
Political Theory vol 13, no 4 (1985); J Schaar, ‘Equality of
Opportunity, and Beyond’ in J R Pennock & J Chapman (eds),
Equality: Nomos IX, Atherton Press 1967; R Wasserstrom, ‘Racism and
Sexism’ in Today's Moral Problems, Macmillan 1985; K Nielsen states
he has “reservations about the whole category of desert” and holds
that “Everyone
should be treated equally as persons and, in spite of what
will often be rather different moral conduct, everyone should be viewed
as
having equal moral worth.” Equality and Liberty: A Defense of Radical
Egalitarianism, Rowman and Littlefield 1985 at 56, 53; D Miller argues that
each person must be treated with equal respect and is entitled to self-respect
irrespective of desert, ‘Democracy and Social Justice’ (1977)
British Journal of Political Science 8; I Young, Justice and the
Politics of Difference, Princeton University Press 1990; and M Young, The
Rise of Meritocracy: 1870-2033, Penguin Books
1958.
[2] J J C Smart, ‘An
Outline of a System of Utilitarian Ethics’ in J J C Smart & B
Williams, Utilitarianism: For and Against, Cambridge University Press
1973 at 54. T M Scanlon, What Do We Owe Each Other, Harvard
University Press 1999 at 274ff rejects desert because he believes only a
libertarian notion of free-will and responsibility,
which he rejects, could
provide an adequate basis for it. D Parfit seems to hold a similar view. See his
dialogue in A Pylee (ed),
Key Philosophers in Conversation, Routledge
1999 at 74ff..
[3] J Kleinig,
Punishment and Desert, Martinus Nijhoff
1973.
[4] B Barry, Political
Argument, Routledge & Kegan Paul London 1965 at 112f.
[4] J Rawls,
supra n 1 at 104.
[5] Rawls
and company have made against meritocracy and the ramifications of their attack
are far reaching. For example, since I do not
deserve my two good eyes and two
good kidneys, the social engineers may take one of each from me to give to
persons needing an eye
or a kidney - even if their organs became damaged through
their own voluntary actions. Since no one deserves anything, we do not
deserve
pay for our labours or praise for a job well done or first prize in a race we
win. The notion of moral responsibility vanishes
in a system of levelling. So
does the notion of self-respect, deemed the basic primary good, for if we
are simply products of the Natural Lottery, how can the self deserve anything at
all, including
respect?
7 Some egalitarians may argue that giving
people equal resources or welfare is giving them their due - what they deserve.
These sort
of egalitarians may assume a basic equal and positive value in all
people, but it is hard to find a sound non-religious argument
for this view. I
have argued against this position in L Pojman,
̵[6]On Equal Human Worth: A Critique of
Contemporary Egalitarianism’ in L Pojman & R Westmoreland (eds),
Equality, Oxford University Press 1996 and ‘Equality; A Plethora of
Theories’ in Journal of Philosophical Research vol 24
1999.
8 A couple in Montclair, New Jersey (Warren and Patricia
Simpson) have recently declared that they're not very good at child rearing
and
don't much like it, so they're exercising their right to retire from it.
“Between the crying and the fighting and asking
for toys, it was getting
to be very discouraging,” Mrs Simpson said. “We're both still young,
and we have a lot of other
interests.” They've put their three small
children up for adoption, and after seven years of parenting, they “are
moving
on.” New York Times Op-Ed “Retirement Fever” by
Michael Rubiner in early February 199[6]. This
may be an extreme example of the abuse of the philosophy of entitlements, but is
indicative of a trend.
9 An older tradition, found in Locke and
more recently in Vlastos and Finnis, holds to the concept of natural rights,
which are preinstitutional
and resemble a kind of desert claim. In these cases
desert and rights seem to converge. I am not opposing this tradition in my
paper,
only the thesis that all rights are
institutional[.]
10 See G Sher,
Desert, Princeton University Press 1987 for a defence against some of
these charges. My work has been profoundly influenced by this seminal
work. But
much remains to be done on behalf of meritocracy, which, as my introduction
indicates, has taken a serious beating in our
time[.]
11 R Goodin,
supra n 1 at 575-598. Some critics have objected that I am just as much
an egalitarian as these liberals, since I assume that resources
should be
distributed according to a common standard. But this objection conflates
equality with impartiality. To say that we should
be judged by the same laws or
criterion, says nothing about what we should get - only that we should receive
benefits or burdens
mandated by the fulfilling or breaking of the standard
everyone should be. You and Ted Bundy the murderer are judged by the same
rule
of “Thou shalt not murder”, but since you are innocent and Bundy
guilty, you ought to receive different
treatment.[ ]
12 D Parfit,
unpublished manuscript: ̵[6]On Giving
Priority to the Worse-Off’
1989.
[6] Supra n 8.
[7] See J R Lucas,
Responsibility, Oxford University Press 1993 for a useful, though overly
simplified, version of the standard view. See F Feldman, ‘Desert:
Reconsideration of Some Received Wisdom’ Jan 1995 Mind vol 104.
[8] See G Sher, supra n
10 at 53.
[9] A W H Adkins,
Merit and Responsibility: A Study of Greek Values, 1960 at
35.
[10] See D Miller, Social
Justice, Oxford University Press 1976 for a good discussion of appraising
attitudes and their relationship to desert claims. The relevant
section is
reprinted in L Pojman & O McLeod (eds), What Do We Deserve?, Oxford
University Press 1999 at 93-100. We may note that while admiration may have as
its object any value, praise (and blame) are
only appropriate to desert
claims.
[11] G Sher,
supra n 10 at 53.
[12]
Kleinig, in an Elvesier Encyclopeia entry on desert, writes that if
there’s anything to it, it’s
soft.
[13] This is not a full
characterization, since temporal indexical need to be included. The reader can
easily apply these. I leave them
out in order to keep the discussion focused on
the essential differences. Robert Audi suggest that virtuous character is also a
desert
base. In so far as our effort creates our character, this is true, but
our character may also have a heredity and environmental base,
in which case it
is more moral merit than
desert.
[14] Or perhaps the
industrious criminal does (non-morally) deserve success, but his kind of desert
is over ridden by the fact that the
victims deserve or have a morl right not to
be burgled or killed.
[15] L
Wittgenstein, ‘Lecture on Ethics’ Philosophical Review
(1944).
[16] See F Feldman,
supra n 14 at 63-77 for an excellent essay on this type of
desert.
[17] One may even say
that they have a right to the spot. In this case the language of rights
and desert seem to coalesce. The controversy over Lewis's participation was
exacerbated
by the fact that Canada unexpectedly beat the United States for a
gold medal. Could Lewis's participation have prevented that? Should
it have
mattered?
[18] J Feinberg,
‘Justice and Personal Desert’ in Pojman and McLeod, supra n
17 at 74.
[19] Quoted in Plato's
Republic at 331. Although Socrates argues against Polemarchus's
interpretation of this view, he holds a version of it
himself.
[20] G C Homans,
Social Behavior: Its Elementary Forms, RKP 1961 at 246 &
264.
[21] Galatians
6:7.
[22] In the Gospel of
Matthew Jesus tells the Parable of the Talents in which a Master, about to
depart on a journey, gives five talents
to one servant, two to another and one
to a third, and instructs them to improve on these endowments. Upon the
master’s return,
they are called to give an account of their stewardship
and are rewarded and punished in proportion to what they have done with the
talents. The master rewarded the two servants who doubled their talents and
punished the man who hid his in the ground (Matt. 25:
14-30). The central ideas
are (1) The Stewardship Thesis: Our talents are not simply a product of the
Natural Lottery, but of a Divine
Bestowal. We didn’t earn them, nor do we
own them. They are gifts, sacred trusts, but we are responsible for using them
in
the service of God and humanity; (2) The Inegalitarian Thesis: We do not have
equal endowments. Some people are more gifted than
others. Some are Aristotles,
Michelangelos, Mozarts, Newtons, Einsteins and Michael Jordans, whose abilities
cause them to stand
out as mountains amidst the mole hills of the rest of us
less talented. Furthermore, we do not end up with equal results. Those who
work
harder generally receive more. Equal justice does not entail equal outcomes. It
would be morally outrageous if all the servants,
the industrious and the
slothful, ended up with the same benefits. Instead, each reaps exactly as he has
sowed. What is wrong is
undeserved inequalities (and equalities); (3) The
Desert Thesis: Desert is the basis for rewards and punishment. We are
responsible for what
we do with our talents, and each person will be rewarded on
how well he uses his talents. To whom much is given, much will be required.
You
can take no credit for your initial talents, but you can take some credit for
what you do with your talents, the resulting merit;
(4) Desert is a Function of
the Good Will. There have been two competing types of merit: contribution
and effort. The contribution is what the actual result of one’s
endeavor is, but the effort consists in how hard one worked to develop
one’s talents and contribute to society. The three servants each had
different initial abilities (in units of 5, 2, and 1)
but very different
resulting merits - contribution merit of 10, 4, and 1. We do not know exactly
what the efforts involved were,
though we do know that the third servant made no
effort at all at improving his lot. He had no merit at all, which made him
worthless
in the sight of his master. Presumably the other two may have made
equivalent efforts, reflecting the fact that they both doubled
their original
endowments.
The Parable doesn’t actually tell us which criterion of
merit is the proper basis for reward. Results don’t tell the whole
story.
One could imagine the 5-talent servant investing his money but having bad luck
and the one talented servant finding a talent
along the road and so doubling his
output. This is only a parable and should not be expected to yield a definitive
distribution
scheme, but the overall thrust of the Old and New Testaments
inclines towards identifying effort as the decisive criterion of merit,
what I have called the paradigm notion of desert. As Saint Paul put it,
“If readiness
is there, it is acceptable according to what a man has, not
according to what he has not” (II Cor. 8:12) - a sentiment similar
to
Kant’s later thesis that the good will is the only intrinsically good
thing, “a jewel that shines in its own light.”
As you
may have noticed, the parable of the talents omits the doctrine of Grace.
According to Saint Paul, we are not saved by works, but by grace through faith
(Eph. 2:8-9). None of us wants to receive only what we deserve -
otherwise we would all be found wanting. Forgiveness from God, procured in part
on the basis of our repentance,
our intention to reform, gives us more than we
deserve. We are assured that God will not give us less good than we deserve.
Nevertheless,
there is still the initial act of commitment and the subsequent
acts of obedience to God which become the basis of meritocratic judgment.
Even
in heaven the blessed will bear the differential rewards of their actions, for
at Judgment Day they will be tried according
to whether they built with
“gold, silver, precious stones, wood, hay, or stubble - each man's work
will become manifest; for
the Day will disclose it, because it will be revealed
by fire, and the fire will test what sort of work each one has done. If the
work
which any man has built on the foundation survives, he will receive a reward. If
any man's work is burned up, he will suffer
loss, though he himself will be
saved, but only as through fire” (I Cor.
3:13-15)
[23] Leibniz,
Theodicy (trans. E M Huggard) 1698. For an excellent discussion of the
concept of fittingness, see G Cupit, Justice as Fittingness, Clarendon
Press 1996. The Oxford English Dictionary defines fittingness as
“appropriateness, becoming, suitable”. It is partly a functional
notion, as when we get suitable
corrective lenses or the right medicine. It is
partly moral, as when we speak, following Aristotle, of doing the right
thing in the right way, at the right time, or as expressed by the Mikado, in Act
II of Gilbert and Sullivan’s
opera “The Mikado”, of letting
“the punishment fits the crime.” It also has an aesthetic aspect, as
when
we say a certain shade of purple is not appropriate for this
picture.
[24] K Marx,
‘Critique of the Gotha Program’ in D McLennan (ed), Karl
Marx: Selected Writings, Oxford University Press 1977 at 566f.
[25] H Sidgwick, The Methods
of Ethics, Hackett Publishing Co Indianapolis Book III, Ch
5.
[26] W R Ross, The Right
and the Good, Oxford University Press 1930 at
138.
[27] I Kant, Groundwork
of the Metaphysic of Morals, trans. H J Paton Hutchinson University Library
1948 at 59.
[28] There is a
classic objection to utilitarianism which applies here, but utilitarian
considerations would also enjoin us to punish
the innocent in order to deter
crime. Suppose a sheriff has weighty evidence that by framing and hanging a
vagrant for a crime he
didn't commit, the crime-rate in his town will be greatly
reduced and the well-being of the town greatly enhanced. Why not frame
and hang
the vagrant? The answer is "Because he is innocent. He does not deserve
to be punished. So it would be unjust to inflict harm on him." Even deeply
committed utilitarians tend to shy away from applying
punishment on the basis of
utility alone (what Rawls calls "telishment"). A necessary condition for just
punishment is guilt. The
criminal must have done something that deserves harm.
That is, a retributive theory of justice underlies the practice of punishment.
We believe that not only should only the guilty be punished but, absent
mitigating circumstances, all the guilty should be punished,
and punished in
proportion to the severity of the crime. As Emil Durkheim noted, “There
is no society where the rule does
not exist that the punishment must be
proportioned to the
offence.”
[29] F de Waal,
‘Good Natured: Animal Origins of Human Morality’, lecture delivered
at the University of Utah, February 12,
1999.
[30] E Sober & D S
Wilson, Unto Others: The Evolution and Psychology of Unselfish Behavior,
Harvard University Press 1998 at
142-3.
[31] W D Ross, supra
n 33 at 48.
[32] The
graph was suggested to me by Fred Feldman’s Intrinsic Value graphs in his
‘Adjusting Utility for Justice: A Consequentialist
Reply to the
Objections from Justice’ Philosophy and Phenomenological Research
60:3 Sept 1995, though I have slightly modified it to suit my somewhat
different theory. I have been influenced by Feldman’s
paper.
[33] R Arneson,
‘Justice and Responsibility’ (paper delivered to the Philosophy
Department at New York University Nov 15
1996).
[34] H Frankfurt,
‘Equality as a Moral Ideal’ in Ethics vol 98:1 October
1987.
[35] I am grateful to
Jonathan Harrison, Stephen Kershnar, Wallace Matson, Robert Audi, Owen McLeod
and, especially, Michael Levin, who
made helpful comments on earlier drafts of
this paper.
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